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«Laurie O’Connor A Dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, Dunedin, New ...»

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Humanitarian Intervention and the Crime of Aggression:

The Precarious Position of the “Knights of Humanity”

Laurie O’Connor

A Dissertation submitted in partial fulfilment of the degree of

Bachelor of Laws (Honours)

at the University of Otago, Dunedin,

New Zealand.

15th October 2010



To my supervisor, Paul Roth, thank you for all your guidance and advice throughout the year.

To Kevin Dawkins, Stephen Smith and Natalie Pierce, for readily answering my questions.

To Catherine Deans, Jeremy Sparrow and the seventh floor crew, you made the long hours enjoyable.

To Lorraine Isaacs and Sarah Watson, for reading my paper even while sick and halfway around the world.

Amy Watson and Andrew Fisk, thanks for everything, I couldn‟t have got this far without your constant encouragement.

Lastly to my Mum and Dad, for all the love and support throughout my life.

2 Contents Table of Abbreviations


Chapter One: Is Humanitarian Intervention an “Act of Aggression”?

I. Does Humanitarian Intervention Come Within the Generic Definition of the Crime of Aggression?

A. Is Humanitarian Intervention the “Use of Armed Force by a State”?.................. 10 B. Status of Humanitarian Intervention under the Charter of the United Nations..... 10 C. Humanitarian Intervention under Customary International Law

II. Does Humanitarian Intervention come within the List of “Acts of Aggression”?....... 19 A. What are the Consequences of the Reference to Resolution 3314?

B. Is the List Exhaustive?

III. Conclusion

Chapter Two: Is a Humanitarian Intervention a “Manifest Violation” of the UN Charter?

I. Justifications of the Threshold Requirement

II. Character, Gravity and Scale

III. Understandings

A. Status of the Understandings

B. Content of Understandings

IV. Travaux Préparatoires

V. Individual Requirements

VI. Conclusion

Chapter Three: Jurisdiction

I. Entry into Force

II. United Nations Security Council Referral

III. State Referral, Proprio Motu

A. Opt-Out Provision

B. Further Hurdles to Exercise of Jurisdiction under Article 15bis

IV. Conclusion


I. Consequences

II. Hypothetical Situation

III. Conclusion



–  –  –

ICC International Criminal Court ICJ International Court of Justice IMT International Military Tribunal ILC International Law Commission NATO North Atlantic Treaty Organisation SWGCA Special Working Group on the Crime of Aggression

–  –  –

On 11 June 2010, at the Kampala Review Conference, the Assembly of States Parties of the International Criminal Court (ICC) adopted the crime of aggression.1 The crime of aggression criminalizes the use of armed force by a state against another state which is a manifest violation of the Charter of the United Nations (UN).2 This marks an historic occasion, since state leaders may now be held accountable for what was condemned half a century ago as the “supreme international crime”.3 However, it is unclear from the face of the definition whether controversial uses of force, such as bona fide humanitarian intervention undertaken to protect victims of severe human rights violations without the authorisation of the United Nations Security Council (UNSC), will be encompassed within the crime of aggression.4 This dissertation will examine whether leaders of humanitarian intervention, dubbed the “knights of humanity”, 5 are at risk of being prosecuted for the crime of aggression and any consequences which may result from this.

At the beginning of the Kampala Conference, Harold Koh, the legal advisor to the United States

State Department, argued that:6

If Article 8bis [the proposed crime of aggression definition] were to be adopted, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide – the very crimes the Rome Statute was designed to deter – do not commit “manifest” violations of the UN Charter within the meaning of Article 8bis. Regardless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution.

This proposed understanding, however, was not adopted. A few academics had also proposed means to exclude humanitarian intervention from the crime of aggression prior to the Review Conference: Christopher DeNicola asserted that a specific exclusion for humanitarian 1 Review Conference Resolution RC/Res.6: The Crime of Aggression, available www.icc-cpi.int (2010) [Review Conference resolution]; references to arts 8bis, 15bis and 15ter without further specification are those of Annex I of the resolution. See attached Appendix.

2 For the full definition of the crime of aggression, see art 8bis in attached Appendix.

3 International Military Tribunal (Nuremberg trial) Judgment (1946), 1 IMT 171, at 186.

4 [Hereafter “humanitarian intervention” will be referring to an unauthorised humanitarian intervention undertaken for purely humanitarian reasons and not as an excuse for regime change, land grab or any illegitimate reason].

5 Yoram Dinstein War, Aggression and Self-Defence (4th ed, Cambridge University Press, Cambridge, 2005) at 71;

O Ramsbotham and T Woodhouse Humanitarian Intervention in Contemporary Conflict: A Reconceptualization (Polity Press, Cambridge, 1996) at 228; Christopher P DeNicola "A Shield for the 'Knights of Humanity': The ICC Should Adopt a Humanitarian Necessity Defence to the Crime of Aggression" (2008) 30 U PA J Int'l L 641 at 641.

6 Harold Koh “Statement by Harold Koh to the Conference” (2010) U.S Department of State Diplomacy in Action www.state.gov/.

6 intervention should be included in the crime of aggression definition,7 and Elise Leclerc-Grange and Michael Byers proposed the inclusion of a special intent requirement 8 to ensure humanitarian intervention would not be caught in the scope of the crime of aggression. Neither of these proposals was implemented however, and no one has examined humanitarian intervention under the newly adopted definition of the crime of aggression.

Unauthorised humanitarian intervention involves the use of (proportionate) military force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave genocide, crimes against humanity or war crimes, perpetrated against individuals other than its own citizens,9 where the UNSC has not authorised such action under the UN Charter. 10 The legality of humanitarian intervention has been highly debated among academics for decades, but particularly since the North Atlantic Treaty Organisation‟s (NATO) intervention in Kosovo in

1999. The problematic nature of discovering if humanitarian intervention will come within the crime of aggression is that humanitarian intervention is difficult to distinguish from an act of aggression. If humanitarian intervention is captured in the crime of aggression and deters states from undertaking humanitarian intervention, who will “respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity”, where the UNSC fails to act.11 Chapter One of this dissertation will examine whether humanitarian intervention could come within the crime of aggression definition of an “act of aggression”. First, it will assess whether humanitarian intervention is covered by the generic definition of an act of aggression. This involves analysis of the legality of humanitarian intervention at international law. Advocates of humanitarian intervention assert that it is legal under the UN Charter and at customary international law. The persuasiveness of their arguments will be analysed. Second, the first chapter looks at whether humanitarian intervention would fall within one of the listed acts in the definition. The meaning of the reference in the definition to United Nations General Assembly (UNGA) Resolution 3314 (XXIX) of 14 December 1974 (Resolution 3314) will be examined so as to ascertain whether it applies in its entirety and it will be considered whether the list is exhaustive.

7 DeNicola, above n 5, at 641.

8 Elise Leclerc-Gange and Michael Byers "A Question of Intent: The Crime of Aggression and Unilateral Humanitaian Intervention" (2009) 41 Case W Res J Int'l L 379 at 379-388.

9 JL Holzgrefe "The Humanitarian Intervention Debate" in JL Holzgrefe and Robert O Keohane (eds) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge University Press, Cambridge, 2003) 15 at 18;

Fernando R Teson Humanitarian Intervention: An Inquiry Into Law and Morality (3rd ed, Transnational Publishers Inc, New York, 2005) at 6.

10 Charter of the United Nations, art 39 states “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with arts 41 and 42, to maintain or restore international peace and security.” 11 Kofi Annan Millennium Report: We the Peoples of the United Nations in the 21 st Century at 7, A/54/2000 (2000).

7 In Chapter Two, the threshold requirement of the crime of aggression will be examined in order to determine whether humanitarian intervention would come under it. The justification for the threshold requirement will be considered, before its scope is determined. The “understandings” concerning the meaning of the threshold requirement attached to the Review Conference resolution will be examined in terms of their status and content. It will also look at the travaux préparatoires in order to shed light on the intended scope of the threshold provision. Lastly, this chapter will outline the elements involved where an individual is to be prosecuted for the crime of aggression.

After considering whether humanitarian intervention would come within the definition of the crime of aggression, the third chapter of this dissertation will consider whether jurisdiction of the ICC would be invoked for a humanitarian intervention, both in terms of whether it could legally be invoked, and also from a practical point of view whether a situation involving humanitarian intervention would be likely to come before the Court. First, I will outline the requirements for the amendment to enter into force. Next, I will consider whether situations of humanitarian intervention would be likely to be referred to the Court by the UNSC, a state party or by the Prosecutor on their own motion. Within this analysis, particular attention will be paid to the contentious opt-out provision as it determines the number of states which will come within the jurisdiction of the Court under art 15bis.12 The final chapter outlines the implications of the findings of my research and examines a hypothetical scenario to test the conclusions reached.

12 See attached Appendix.

–  –  –

Is Humanitarian Intervention an “Act of Aggression”?

For leaders of humanitarian intervention to be punished for the crime of aggression, it must first be found that a humanitarian intervention is an “act of aggression”. The definition of an “act of aggression” in art 8bis(2) is a combination of arts 1 and 3 of the Resolution 3314 definition of state aggression.13 First, an act must come within the generic definition which requires that there is a “use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. Second, the act must fall within a list of acts which “in accordance with United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974, qualify as acts of aggression”. This chapter will examine whether humanitarian intervention would fall within this definition.

I. Does Humanitarian Intervention Come Within the Generic Definition of the Crime of Aggression?

Whether humanitarian intervention is a “use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations” under art 8bis(2), involves essentially the same issue as to the legality of humanitarian intervention at international law. This is because art 8bis(2) states that any use of force inconsistent with the UN Charter will be an act of aggression. For humanitarian intervention to be legal under the UN Charter, it must either be permitted under the Charter or established as an international customary norm.14 As stated in the introduction, the legality of humanitarian intervention has been highly debated for decades. This section will examine the legality of humanitarian intervention so as to determine whether it would come 13 Resolution on the Definition of Aggression GA Res 3314, UN GAOR, 29th sess, 2319th plen mtg, (1974) [Resolution 3314].

14 Statute of the International Court of Justice, art 38(1), is widely accepted as the authoritative statement of the sources of international law (see Ian Brownlie Principles of Public International Law (7th ed, Oxford University Press, New York, 2008) at 4-5). It states that “international norms are legally binding if they are incorporated into the law in: a. International conventions, whether general or particular, establishing rules expressly recognised by the contesting state; b. International custom as evidence of a general practice accepted as law”. This approach was reaffirmed by the International Court of Justice (ICJ) in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, at 109 [Nicaragua].

9 under the scope of the definition of an “act of aggression”. First, this section will examine arguments to the status of humanitarian intervention under the UN Charter. Second, it will scrutinize its status at customary international law. Before this, however, it must be considered whether humanitarian intervention involves “the use of armed force by a State”.

A. Is Humanitarian Intervention the “Use of Armed Force by a State”?

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