The Law and Politics in ProsecutingnAggression: through the Lens of the Principle of Legality

It is contended by scholars taking a critical approach that international law is based on contradictory premises (ie tension between naturalism and positivism, or between the community interest and the individual state interest), thus there exists fundamental indeterminacy in international rules which produce grey areas in which politics can play a role.[1] This point poses a reasonable challenge to the legalist approach which presumes

law as existing separately from politics. When the critical perspective is applied to the definition of aggression, it shows that the notion is indeed highly indeterminate.[2]

The idea that international law is indeterminate, however, might stand in contrast to the underlying idea in criminal law which requires the definition of crimes to be sufficient clear and precise.[3] If a person is to be convicted for crime of aggression, the principle of legality might apply to mitigate the uncertainty, because in case of doubt, an

interpretation in favor of the accused should always be adopted based on that

principle.[4] This essay considers how the legalist approach and critical approach apply to

view prosecuting aggression, and whether the view would be different when we

take into consideration the principle of legality.

The analysis in this essay on the Post-WW II trials and the rules on crime of aggression in Rome Statute shows that even though the principle of legality appears to mitigate indeterminacy, the actual application of the principle to the crime of aggression is highly problematic, making it questionable whether the legalist idea to prosecute aggression could successfully put an end to impunity of aggression. The essay starts by a brief

description of legalist approach and critical approach to the interplay of international law and politics before analyzing the specific issue regarding to prosecuting aggression.

1. Legalist Approach v. Critical Approach

The legalist approach to international law is described by Judith Shklar as 「ethos of legalism」. As Wouter Werner summarizes, the legalist approach held by Shklar has four main elements:

「(a) it views social relationships in terms of rights and duties as determined by more general rules; (b) it treats law as something 『out there』, as a body of pre-existing

rules; (c) it believes in the possibility to separate law from non-law (morality, politics etc) (d) it fears and fights arbitrariness.」[5]

According to this approach, law is considered separately from politics and is used to constrain the latter. However, the legalist approach overlooks the fact that law is the product of political struggle and it also ignores the 「constitutive functions of law: the way in which law produces reality, symbolic orders, and power.」[6]

The critical perspective, however, considers the international law to be inherently indeterminate. It is shaped in particular discourses based on a combination of state consent, sources and a canon of interpretation.[7] It is not 「something carved in stone, but the product of a practice of argumentation」.[8] When this critical perspective is applied to the aggression debate, it can be seen that the law on use of force is full of grey areas and thus makes it possible for both parties to the dispute to make legal arguments in favor of

themselves.[9]

This essay will then consider whether this is still the case when international criminal law comes into play. More specifically, whether the principle of legality which is based on the idea that law should be certain and precise, could mitigate the uncertainty in the definition of crime of aggression, making it possible to separate international criminal trials from political influence.

2. The Principle of Legality and the Crime of Aggression

The 「principle of legality」 (nullum crimen sine lege, no crime without law) requires that prosecution and punishment be based upon clear provisions of international law, at the time the crime was committed. Now, the strict principle of legality contains four sub-rules: 「specificity, non-retroactivity, the ban on analogy, and favoring the accused」.[10]

As for specificity, it requires the definition of crimes to be sufficient clear and precise. Non-retroactivity refers that an individual should not be prosecuted for his/her behavior not specifically criminalized by law, when it was committed. The rule of non-retroactivity was also embedded in many human rights treaties as non-derogable.[11] The rules of ban on analogy and favoring the accused are also limitations of judicial interpretations.[12]

As for the idea of prosecuting aggression, it was adopted at Nuremberg Trial followed by Tokyo, is now incorporated into the Rome Statute and will become operative this year. This essay focuses on the interplay between the principle of legality and prosecuting aggression, and it is going to analyze the practice of prosecuting aggression at post WW II trials and the Rome Statute, to see whether the principle of legality could make the law more certain and prevent the trials from being political.

3. Analysis of Post WW II Trials

3.1 The Legalist Approach to Post WW II Trials

Under the legalist thinking, international trials should stay away from political influence. This also reflects how many contemporary scholars view post-WW II trials.

On the one hand, as the jurisprudence of the ad hoc tribunals showed, the jurisprudence of post WW II trials were accepted uncritically as binding precedents. For positivist lawyers, decisions of Nuremberg IMT and Tokyo IMT[13] are formal sources of international law in their own right according to Art. 38(1)(d) of the Statute of the ICJ. They constitute authoritative though not necessarily conclusive statements as to the content and existence of rule international law at issue.[14]

One the other hand, it is criticized by others that the approach taken by the ICTY is problematic, as it uncritically relied on jurisprudence of Post World War II era whose legitimacy was questionable. The Post WW II trials are considered, as 『victor』s justice』 thus should be disregarded today.[15] They seem to take it for granted that a trial is necessarily unfair if it is politicized and vice versa. Some others also followed this approach and gave

even lower weights to Tokyo IMT than the Nuremberg IMT. It is argued by M.

Cherif Bassioni, for example, that Nuremberg IMT was generally fair while Tokyo IMT (due to the fact that it seemingly had more political influence) was generally unfair thus 「Tokyo, … was a precedent that legal history can only consider with a view not to repeat it」.[16] Many legalists would also consider that the Post-WW II trials applied retroactive

law, violated the principle of legality thus should be given less weight today when proving customary international law.[17]

3.2 The Critical Approach to Post WW II Trials and the Legality Debate

A purely legalist approach to view post WW II trials of aggression cannot hold because the debates on whether prosecuting aggression violated the principle of legality at the trials were based on inherently different views of justice. Since the meaning of justice is essentially contested, it was therefore possible for both parties to support/deny the legality of post WW II trials.

The views expressed at the post WW II trials took different approaches to the notion 「justice」 and the character of international law, resulting in different answers to the question whether the principle of legality was violated by convicting the accused with crimes against peace.[18]

The judgment at Tokyo Trial concurred with the Nuremberg Trial that the principle of legality was only 「a principle of justice」 not applicable in the present case.[19] However, the defendant and Judge Pal interpreted the notion 『justice』 to mean that mean that 「justice is to be administered by established rules and principles, not according to the sense of right and justice of the judges.」[20] They then argued that from 1928 to 1945, positive international law imparted no responsibility to individuals for aggressive war of states thus the conviction is a violation of the principle of legality.[21]

Here, it can be seen the debates on whether the principle of legality was observed at post-WW II trials surrounded the notion of 「justice」 which is inherently uncertain, as both a positivist interpretation as adopted by the defendant and judge Pal and a naturalist interpretation as adopted by the majority judgment can be attached to it. Therefore, as far as post-WW II trials are concerned, the principle of legality is based on the indeterminate

notion of justice, and are therefore inherently political.

The question then arises that is that still the case today, if we taken into account what Cassese observed, ie international criminal law is changing and this legal change is accompanied by a gradual shift from the doctrine of substantive justice to that of strict legality.[22]

4. Analysis of the Rome Statute

The drafter of the Rome Statute might had in their mind a legalist idea as they cautioned that the Court 「should not be seen as a way of pursuing political goals」.[23] Other organs of the Court also describe it as apolitical.[24] The principle of strict legality is set forth in articles 22, 24(1) and 24(2) of the Rome Statute. Therefore, it might be argued that despite the notion of aggression is unclear, the application of the principle of legality would

render the interpretation always in favor of the accused.

However, examination on the application of the principle of legality in contemporary international criminal tribunals shows the opposite answer. Commentators and case law has shown that the principle of legality does not bar the progressive application and formulation of customary international law by international tribunals.[25] This can also be the case with the Rome Statute. As argued by Marko Milanovic, the right of the accused to resort to the principle of legality is dependent on the nature of the Rome Statute (ie whether it is purely jurisdictional or substantive).[26] However, a close examination of both the Rome Statue and the Kampala Amendment would show that the legal nature of the Rome Statue is indeterminate,[27] therefore rendering both parties can challenge/support the prosecution of aggression at the ICC based on the principle of legality.

To conclude, the above analysis on the Post WW II trials and the rules on crime of aggression in Rome Statute shows that even though the principle of legality appears to mitigate indeterminacy, the actual application of the principle to the crime of aggression is highly problematic, making it questionable whether the legalist idea to prosecute aggression could successfully put an end to impunity of aggression. In light of such uncertainty, a critical view to the interplay between law and politics could still hold here.

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[1] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument

(CUP 2006) 590.

[2] Marike de Hoon, The Law and Politics of

the Crime of Aggression <

http://dspace.ubvu.vu.nl/bitstream/handle/1871/55318/complete%20dissertation.pdf?sequence=6&isAllowed=y

> accessed 24 October 2017.

[3] Antonio Cassese [et al], Cassese』s

International Criminal Law (3rd ed., Oxford University Press, 2013) 27-36.

[4] Rome Statute of the International Criminal

Court (entered into force 1 July 2002) 2187 UNTS 90, article 22(2).

[5] Wouter Werner, 『Security and International

Law: Between Legalism and Securitisation』, in Bourbeau (ed.), Security:

Dialogue across Disciplines (Cambridge University Press, 2015).

[6] Wouter Werner, 『The Use of Law in

International Political Sociology』 (2010) 4 International Political Sociology

304, 305.

[7] Werner (n 40).

[8] Jan Klabber, International Law (CUP 2013)

58.

[9] Hoon (n 37).

[10] Antonio Cassese [et al], Cassese』s

International Criminal Law (3rd ed., Oxford University Press, 2013) 27-36.

[11]

International Covenant on Civil and Political Rights (adopted 16 December 1966,

entered into force 23 March 1976) 999 UNTS 191 (ICCPR) Art 15.

[12] Rome Statute, Art 22(2).

[13] While some would argue that Tokyo IMT was

not an international criminal court, as it was established under executive

order of an American General. See Mirjan Damas?ka?, 『The Shadow Side of Command Responsibility』, 49 The

American Journal of Comparative Law 455, fn 66.

[14] Roger O』Keefe, International Criminal Law

(Oxford University Press 2015) 110.

[15] M. Cherif Bassiouni, Richard A. Falk and

Yasuaki Onuma, 『Nuremberg Forty Years After』 (1986) 80 PASIL 59, 64; Richard

Minear, Victors Justice: Tokyo War Crimes Trial (Princeton University Press

1971).

[16] M.

Cherif Bassiouni, 』Nuremberg: Forty Years After』, Proceedings o f the Annual

Meeting (American Society of International Law), Vol 80 (APRIL 9-12, 1986), pp.

59-68.

[17] Sander B. Unravelling the Confusion Concerning Successor Superior

Responsibility in the ICTY Jurisprudence[J]. Leiden Journal of International

Law, 2010, 23(1): 105-135, p. 129.

[18] Kobori Keiichiro (ed) The Tokyo Trials:

The Unheard Defense (Kodansha 1995) 69-70; Joseph B Keenan and Brendan F

Brown, Crimes against International Law

(Public Affairs Press 1950) 51-5.

[19] Transcript 48436.

[20] Transcript of Tokyo Trial Proceedings,

42110-270.

[21] Transcript 17056-7, 17059.

[22] Antonio Cassese (n 45) 9.

[23] 『Summary records of the meetings of the

forty-six session, 2 May – 22 July 1994』, Yrbk Int』l Law Comm,

A/CN.4/Ser.A/1994, at 23, para. 28.

[24] Cf Sarah Nouwen & Wouter Werner,

『Doing Justice to the Political: The International Criminal Court in Uganda and

Sudan』 (2010) 21 European Journal of International Law 941-965, at 944.

[25] Robert Cryer and others, An Introduction to

International Criminal Law and Procedure (Cambridge University Press 2014)

17–19; Larrisa J Van Den Herik, The Contribution of the Rwanda Tribunal to

the Development of International Law (Martinus Nijhoff Publishers 2005)

213–14.

[26] Marko

Milanovic, 『Is the Rome Statute binding on individuals (And Why We Should

Care)』 (2011) 9 Journal of International Criminal Justice 25; Marko Milanovic,

『Aggression and Legality: Custom in Kampala』 (2012) 10 Journal of International

Criminal Justice 165.

[27] Ibid.

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