CYIL Vol. 6, 2015

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 6

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2015

Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR

Czech yearbook of public & private International law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 6. – Praha : Česká společnost pro mezinárodní právo, 2015. – x, 460 stran

Vydáno v nakladatelství Eva Rozkotová ISBN 978-80-87488-23-2 (Eva Rozkotová)

341.1/.8 * 341.9 * (437.3) – public international law – public international law – Czechia – private international law – private international law – Czechia – collective monographs – yearbooks – mezinárodní právo veřejné – mezinárodní právo veřejné – Česko – mezinárodní právo soukromé – mezinárodní právo soukromé – Česko – kolektivní monografie – ročenky

341 – International law [16] 341 – Mezinárodní právo [16]

Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností Akademie věd ČR. This Yearbook is published with a ϐinancial support of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Weil, Gotshal & Manges LLP. © Česká společnost pro mezinárodní právo, 2015 © Czech Society of International Law, 2015 Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu ISSN 1805-0565 ISBN 978-80-87488-23-2 Passau-Berlin-Praha

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor VLADIMÍR KOPAL † West-Bohemian University, Faculty of Law

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Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Professor MAHULENA HOFMANN SES Chair in Space Communications and Media Law, University of Luxembourg, Faculty of Law, Economics and Finance Dr. KATARÍNA ŠMIGOVÁ, Paneuropean University Bratislava, Faculty of Law Dr. EVA VILLACIS Ministry of Foreign Affairs of the SR, Bratislava / The Hague

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CONTENTS

PREFACE Pavel Šturma

VII

IX

ABBREVIATIONS

I. SYMPOSIUM: THE CRIME OF AGGRESSION WITHIN THE ROME STATUTE POST – KAMPALA Introduction to section “Symposium on the Crime of Aggression” Pavel Šturma – Milan Lipovský Aggression – the Supreme International Crime or Not a Crime at All? Veronika Bílková Back to the ILC’s Legislative History: Code of Crimes against the Peace and Security of Mankind Pavel Šturma The Political Realities and Legal Possibilities Concerning the Relationship between the United Nations Security Council and the Crime of Aggression in the International Criminal Court Carollann Braum Crimes against peace in Nuremberg Alla Tymofeyeva

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5

25

37

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The Definition of the Crime of Aggression – Entry into Force and the Exercise of the Court’s Jurisdiction over this Crime Pavel Caban

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Manifest violation of the UN Charter Jan Lhotský

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The Understandings to the Rome Statute’s Crime of Aggression Milan Lipovský

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The Kampala Agreement on crime of aggression and responsibility for cyber-attacks Kristýna Urbanová II. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS Jus cogens and the question of criterions for its determination Čestmir Čepelka Creation of New States and De Facto Regimes and the Case Referring to Crimea Jan Ondřej

103

117

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The Vienna Convention on Civil Liability for Nuclear Damage and Nuclear Installations: Application Problems Revisited Jakub Handrlica

149

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Victims ’ Right to Reparation under International Human Rights Law: also against International Organizations? Martin Faix III. INTERNATIONAL LAW AND EUROPEAN LAW The limits of so-called benefit tourism and the free movement of EU citizens Harald Christian Scheu Human rights between Strasbourg and Luxembourg – disintegration of monist view of human rights protection or a new beginning? Monika Forejtová IV. INTERNATIONAL HUMAN RIGHTS LAW AND CRIMINAL LAW You can’t have one without the other, can you? Assessing the Relationship Between the Use of Force in the Name of Human Rights and Regime Change Ralph Janik Reproductive Rights and Human Dignity. Convergence or Divergence in the Jurisprudence of the European Court of Human Rights? Pavel Bureš The Highest Amounts of Just Satisfaction: Awards of the European Court of Human Rights to Legal Persons Alla Tymofeyeva Human Rights Dimension of the ICC's Complementarity Regime Ondřej Svaček Gaps in the legal regime of interstate cooperation in prosecuting crimes under international law Pavel Caban V. CZECH VIEWS ON INVESTMENT AND TRADE LAW Post-Lisbon Exercise of EU Competence in the Field of Foreign Investment: Coping with the International Projection of Intra-EU Complexity Magdalena Ličková

161

187

209

223

239

255

273

289

315

TTIP and ISDS: not irreconcilable acronyms Ondřej Svoboda

345

Diag Human: A case study on multi-jurisdictional enforcement of an international arbitration award Monika Feigerlová

357

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VI. CZECH PRACTICE OF INTERNATIONAL LAW The work of the International Law Commission in 2015, business as usual? Pavel Šturma

375

The Czech-Austrian Declaration on Jurisdictional Immunities of State-Owned Cultural Property Petr Válek

387

The Czech Republic before the European Court of Human Rights in 2014 Vít Alexander Schorm List of Ratified International Treaties which Entered into Force for the Czech Republic from 1 st January 2014 till 31 st December 2014 Milan Beránek

401

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VII. BOOK REVIEWS Carrie McDougall The Crime of Aggression under the Rome Statute of the International Criminal Court Jan Lipovský

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V. Honusková, E. Flídrová, L. Janků Today’s Migrants, tomorrow’s refugees? The Status of Migrants who need Protection in International Law Šárka Oštádalová

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Pavel Šturma (ed.) et al. Response of International Law to International Crimes Štefan Viedenský 429 VIII. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY Survey of Czech International Law Bibliography Zuzana Trávníčková 437

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PREFACE

Dear Readers, You now have in your hands the sixth volume of the Czech Yearbook of Public & Private International Law (CYIL), appearing, as usual, in October, the period of harvest. This is good news not only for wine lovers but also for readers of this Yearbook, interested in developments in international law. The Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. The above institutions and the Editorial Board of the CYIL are proud that, despite its rather complicated start in life, the Yearbook has not only survived but is growing and maturing. The sixth anniversary is a good occasion to announce some news. As you know, the CSIL publishes the Yearbook both in printed and electronic versions (www.cyil. eu). Since this year, the Czech Yearbook has been included, in addition to the Czech index of scholarly peer-reviewed journals (RVVI), in the SCOPUS international database. We are proud to announce this achievement, as we are the first Czech law journal admitted to the SCOPUS. Next, beginning with its previous volume, the Czech Yearbook is being published by the new international publishers, RW&W, Science & New Media, Passau-Berlin-Praha, and distributed through the company Südost Service GmbH abroad, mostly in Germany. The newly established partnership should ensure a place for the Czech Yearbook in the catalogues and databases among other international law journals and books. However, rich and innovative content is and must be, in our opinion, as important as form, if not even more important. From this point view, Volume 6 (2015) keeps up the standards set in previous volumes. As usual, the variety of studies and articles in this volume covers many issues of contemporary International and European law. The innovation of this volume is in a new thematic section, Symposium on the Crime of Aggression in the Rome Statute post-Kampala, including eight contributions focused on both general and special issues related to the definition of the crime of aggression. The editors would like to continue this model in coming years. The Czech Yearbook aims at regularly presenting, along with various studies and articles, such thematic symposia. In addition to the Symposium, the volume includes, inter alia , articles on a determination of jus cogens , the creation of States and the case of Crimea, the right of victims to reparation from international organizations and civil liability for nuclear damage. For the third time, the CYIL also presents a section on EU law, including articles on the free movement of persons and issues of human rights protection between Strasbourg and

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Luxembourg. An important number of articles deal with international human rights law, in particular from the perspective of the European system and international criminal law. According to its tradition, the CYIL also covers in Volume 6 certain aspects of international investment law and arbitration, such as the EU competence in the field of foreign investment, the TTIP and ISDS, and enforcement of international investment awards. The Yearbook also covers the Czech practice of international law, in particular the Czech-Austrian Declaration on Jurisdictional Immunities of State- Owned Cultural Property and the Czech cases before the European Court of Human Rights. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2015, the list of treaties ratified by the Czech Republic, book reviews and a survey of Czech international law bibliography. As usual, the authors of this publication come both from Czech and foreign institutions, from academia and legal practice. More so than in previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, Luxembourg, Slovakia, Ukraine and the USA. As to the Czech institutions involved, these include Charles University in Prague, Palacký University in Olomouc, West-Bohemian University in Plzeň, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs and the Ministry of Justice, as well as some private law firms. While keeping high academic standards, the Yearbook wants to be open for dialogue of scholars and practitioners of international law. This publication appears thanks to a financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firm Weil, Gotshal and Manges. We wish that this volume of the Czech Yearbook will also find many readers and we are looking forward to new authors and new contributions for the next volume. We are also grateful for any comments and suggestions on how to improve the quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS

AALCO – Asian-African Legal Consultative Organization ACH – Appeals Chamber

ACTA – Anti-Counterfeiting Trade Agreement ASP – Assembly of States Parties of the ICC BITs – bilateral investment treaties CAHDI – Council of Europe Committee of Legal Advisers on Public International Law CETA – Economic Trade Agreement with Canada CCP – Common Commercial Policy CCPCJ – Commission on Crime Prevention and Criminal Justice CJEU – Court of Justice of the EU DARIO – Draft Articles on Responsibility of International Organisations DPRK – Democratic People’s Republic of Korea DARS – Draft Articles on Responsibility of States for Internationally Wrongful Acts EC – European Commission ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECT – Energy Charter Treaty ECtHR – European Court of Human Rights EU – European Union EUSFTA – EU-Singapore Free Trade Agreement

FAA – U.S. Federal Arbitration Act FDI – Foreign Direct Investment GATT – General Agreement on Tariffs and Trade

ICC – International Criminal Court ICJ – International Court of Justice ICTY – International Criminal Tribunal for the former Yugoslavia ILC – UN International Law Commission

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IMT – International Military Tribunal ISDS – Investor-to-State Dispute Settlement ISIL – Islamic State of Iraq and the Levant KR – Khmer Rouge regime

MFA – Ministry of Foreign Affairs of the Czech Republic MINUSTAH – United Nations Stabilization Mission in Haiti NATO – North Atlantic Treaty Organization NGOs – non-governmental organizations OECD – Organisation for Economic Co-Operation and Development RPF – Rwandan Patriotic Front SOFA – Status of Forces Agreements SWGCA – Special Working Group on the Crime of Aggression TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union TTIP – Transatlantic Trade and Investment Partnership UK – United Kingdom UN – United Nations UNCE – Charles University Faculty of Law’s Research Centre of Human Rights UNCTAD – United Nations Conference on Trade and Development UNFPA – United Nations Population Fund USA – United States of America USSR – Union of Soviet Socialist Republics VCLT – Vienna Convention on the Law of Treaties

WHO – World Health Organization WMD – Weapons of Mass Destruction WTO – World Trade Organization

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I. SYMPOSIUM:

THE CRIME OF AGGRESSION WITHIN THE ROME STATUTE POST – KAMPALA

INTRODUCTION TO THE SECTION “SYMPOSIUM ON THE CRIME OF AGGRESSION” INTRODUCTION TO THE SECTION “SYMPOSIUM ON THE CRIME OF AGGRESSION” On April 24, 2015 a conference called The Crime of Aggression within the Rome Statute post-Kampala was organized under the auspices of the Charles University Faculty of Law’s Research Centre for Human Rights (hereinafter referred to as “UNCE”). UNCE is an interdisciplinary research centre of the Faculty of Law focused on topics in broad terms related to protection of human rights both under international and domestic law, and, as such, it also covers some issues of international criminal law. Since the Czech Republic has recently ratified the Kampala amendments to the Rome Statute, the occasion to organize a conference to discuss the legal issues of one of these two amendments (Resolution RC/Res. 6, on the crime of aggression) presented itself. The conference took place within the representative premises of the Charles University Faculty of Law and hosted 10 speakers, of whom each presented a very interesting topic. The group of speakers included legal academics from Charles University in Prague, students of the PhD. programme in international law, a professional from the Ministry of Foreign Affairs of the Czech Republic, as well as other academics and legal professionals interested in international criminal law. Due to the different nationalities of the speakers, the contributions were presented both in Czech and English and the following discussions were also bi-lingual. The organizers of UNCE wish to thank all the speakers for their contributions and the interesting discussion that followed them and showed that the definition of aggression contains many problematic aspects that are not going to be easy to solve. Since there are not many publications written on this topic, the Editors of the Czech Yearbook of Public & Private International Law (a law journal of the Czech Society of International Law) proposed to publish all the submitted contributions in volume 6 of this journal. This whole section of the Yearbook entails the contributions that were presented at the above mentioned conference and submitted to CYIL and were accepted, after a peer review procedure, for publication.

Prof. Dr. Pavel Šturma Mgr. Milan Lipovský

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AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? AGGRESSION – THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL?

Veronika Bílková*

Abstract: Since the establishment of the post-WWII military tribunals, the crime of aggression has regularly featured among serious international crimes giving rise to individual criminal responsibility. For at least as long a period of time, this qualification has been virulently contested by those who believe that aggression, though certainly not condonable, fails to meet some, if not all, of the requirements making an act into an international crime. This paper sides with the first view, arguing that while the crime of aggression might exhibit certain particularities when compared to other international crimes, this does not, at the current stage of the development of international criminal law, prevent it from qualifying as one of those crimes. At the same time, there is no sound reason why the crime of aggression should be considered the supreme international crime, in the famous dictum of the Nuremberg Tribunal, provided that international crimes do not stand in any hierarchical order. Resumé: Od zřízení mezinárodních vojenských tribunálů po druhé světové válce bývá zločin agrese pravidelně řazen mezi závažné mezinárodní zločiny, které zaklá- dají individuální trestní odpovědnost. Přinejmenším stejně dlouho je ovšem toto hodnocení zpochybňováno těmi, kteří věří, že agrese, byť se jistě nejedná o chvály- hodné jednání, nenaplňuje některé, nebo dokonce všechny znaky mezinárodního zločinu. Tento příspěvek se přiklání k prvnímu názoru a ukazuje, že zločin agrese sice vykazuje některé zvláštní rysy ve srovnání s jinými mezinárodními zločiny, to ale nebrání jeho zařazení do této kategorie. Současně nejsou pádné důvody pro to považovat zločin agrese za nejzávažnější mezinárodní zločin, za nějž jej kdysi označil Norimberský tribunál. Je tomu tak proto, že mezinárodní zločiny nejsou vůči sobě vzájemně ve vztahu jakékoli hierarchie. Key words: Aggression, Crimes under International Law, International Crime. On the Author: doc. JUDr. PhDr. Veronika Bílková, Ph.D., E.MA, works as an associate professor in international law at the Faculty of Law of Charles University and a research fellow at the Institute of International Relations in Prague. She graduated from the Law and Philosophical Faculties of Charles University and from the European Master’s Degree in Human Rights and Democratisation, and she is a holder of the Diploma in International Law awarded by the University of Cambridge. Since 2010 she has been the member of the Council of Europe Commission for Democracy Through Law (Venice Commission) on behalf of the Czech Republic. She focuses on international law and international relations and publishes extensively in these areas.

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* This research was supported by the Czech Science Foundation within the project GA13-26485S – Global Prohibition Regimes: Theory and Empirical Analysis (2013-2016, GA0/GA).

VERONIKA BÍLKOVÁ

CYIL 6 ȍ2015Ȏ

1. Introduction Since the establishment of the post-WWII military tribunals, the crime of aggression has regularly featured among serious international crimes giving rise to individual criminal responsibility. For at least as long a period of time, this qualification has been virulently contested by those who believe that aggression, though certainly not condonable, fails to meet some, if not all, of the requirements making an act into an international crime. This paper sides with the first view arguing that, while the crime of aggression might exhibit certain particularities when compared to other international crimes, this does not, at the current stage of the development of international criminal law, prevent it from qualifying as one of those crimes. At the same time, there is no sound reason why the crime of aggression should be considered the supreme international crime, in the famous dictum of the Nuremberg Tribunal, provided that international crimes do not stand in any hierarchical order. 2. Is Aggression an International Crime? – Positions There is quite a bit of support at the international scene in favor of the view that aggression counts as an international crime. This qualification appears in international instruments and is backed by scholarly writings. It is true that the sources are not always easy to interpret. This is largely due to the fact that the terminology lacks uniformity. As Bassiouni rightly notes, “the literature contains various /…/ terms, such as crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu , transnational crimes, international delicts , jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as “core crimes” /…/”. 1 The terms, moreover, remain often undefined in the sources, stirring doubts as to whether they refer to the same concept or not. It is nonetheless interesting to note that whatever the term used, the category denoted by it mostly includes aggression. This rule however is not without exceptions. There are dissenters both among States and among scholars who, for various reasons, contest that aggression could qualify as an international crime. 2.1 Yes, Aggression Is An International Crime Since the mid-20 th century, various international instruments have qualified the crime of aggression or, in the original term, crimes against peace, as an international crime. The first instrument to do so was the Charter of the Nuremberg International Military Tribunal adopted on 8 August 1945 as an annex to the London Agreement concluded by the Allied powers. The Charter lists three “crimes /…/ for which there shall be individual responsibility” (Article 6). Among them, besides war crimes and 1 BASSIOUNI, M. Ch.: International Crimes: The Ratione Materie of International Criminal Law, in BASSIOUNI, M. Ch. (ed.): International Criminal Law, Vol. I – Sources, Subjects, and Contents, Third Edition, Martinus Nijhoff Publishers, Leiden, 2008 , p. 133.

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AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? crimes against humanity, are crimes against peace. These are to consist in “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” (Article 6(a)). A similar formulation was included in the Charter of the Tokyo International Military Tribunal, adopted on 19 January 1946. The sole difference related to the underlying act of aggression, which was defined as “a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances” (Article 5(a)). In its jurisprudence, the two international military tribunals repeatedly confirmed that crimes against peace were committed by the major German and Japanese criminals 2 and that they were crimes of utmost gravity. 3 In its main judgment, the Nuremberg Tribunal held: “To initiate a war of aggression, /…/ is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” 4 Responding to the argument put forward by the defence that crimes against peace could not give rise to individual criminal responsibility, the Tokyo Tribunal asserted that “aggressive war had been a crime at international law long prior to the date of the Declaration of Potsdam”. 5 Following on this case-law, one of the tribunals established under Control Council Law No. 10 for the prosecution of German war criminals other than the major ones prosecuted in Nuremberg, stated that the aggression against Norway “was without lawful justification or excuse and is a crime under international law”. 6 In 1946, the UN General Assembly asked the newly established UN International Law Commission (hereafter the ILC) to formulate “the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal” . 7 In 1950, the ILC adopted a set of such principles. 8 Principle I confirms that “any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment”. The list of such crimes, included in Principle VI, begins with crimes against peace, which are defined identically as in the Nuremberg Charter. In its comment to Principle VI, the ILC referred to the judgment of the Nuremberg 2 Twelve defendants were found guilty of crimes against peace by the Nuremberg Tribunal and 23 by the Tokyo Tribunal. 3 See also SELLARS, K.: ‘Crimes against Peace’ and International Law, Cambridge University Press, Cambridge, 2013. 4 Cit. in Historical Review of Developments relating to Aggression, United Nations, New York, 2003, p. 8. 5 Ibid., p. 170. 6 Ibid., p. 108. 7 UN Doc. A/RES/1/95, Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, 11 December 1946. 8 UN Doc. A/1316, Report of the International Law Commission Covering its Second Session, 5 June-29 July 1950 , July 1950, pp. 374-378.

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VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ Tribunal which “refuted the argument of the defence that aggressive war was not an international crime” . 9 In 1954 the ILC adopted the text of the Draft Code of Offences against the Peace and Security of Mankind . 10 Article 1 of the Code states that the offences against peace and security of mankind are “crimes under international law, for which the responsible individuals shall be punished”. The list of the offences, in Article 2, is quite comprehensive, encompassing not only any act of aggression and any threat to resort to an act of aggression, but also a host of other acts involving the use or threat of use of military force. A revised version of the Code (renamed to the Draft Code of Crimes against the Peace and Security of Mankind 11 ) was adopted by the ILC in 1996. While confirming that “crimes against the peace and security of mankind are crimes under international law” [Article 1(2)] and that the crimes of aggression is one of them, it defines this crime in a narrower – and more traditional – way as the act of “an individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State” (Article 16). The crime of aggression features among “the most serious crimes of concern to the international community as a whole” 12 which fall under the jurisdiction of the International Criminal Court (hereafter the ICC). During the 1998 Diplomatic Conference, a vast majority of States spoke in favour of including aggression into the Rome Statute. For instance, the Czech Republic held that the ICC “should have inherent jurisdiction over the four core crimes of genocide, war crimes, crimes against humanity and aggression, which are regarded as crimes under customary international law”. 13 Lithuania stressed that the inclusion of aggression was even one of its major objectives, since “experience showed that an act of aggression often led to genocide, crimes against humanity and war crimes”. 14 Egypt agreed that “the crime of aggression, the worst crime against humanity, /…/ should be punishable under the Statute”. 15 Other states supporting the inclusion of the crime of aggression were, for instance, Afghanistan, Albania, Austria, Azerbaijan, Germany, Hungary, Japan, Latvia, Macedonia, Oman, Nigeria, the Philippines, Portugal, the Republic of Korea, Sierra Leone, Slovakia, Syria, Tajikistan, Vietnam or Zambia. The original text of the Rome Statute, adopted on 17 July 1998, contained the crime of aggression, leaving it, however, undefined. 16 The definition, with the conditions of 9 Ibid., p. 376. 10 Yearbook of the International Law Commission, 1954 , vol. II, pp. 149-152. 11 Yearbook of the International Law Commission, 1996 , vol. II (Part Two), pp. 17-56. 12 Rome Statute, Article 5. 13 UN Doc. A/CONF.183/SR.3, Diplomatic Conference – 3rd Plenary Meeting, 16 June 1998, par. 21. 14 Ibid., op. cit., par. 50. 15 UN Doc. A/CONF.183/SR.2, Diplomatic Conference – 2nd Plenary Meeting, 15 June 1998, par. 79. 16 Article 5(2) stipulated: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”

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AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? the exercise of jurisdiction, was added pursuant to the Kampala review conference in 2010. Under the new Article 8 bis of the Statute, the crime of aggression means “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. The exercise of the jurisdiction over the crime of aggression by the ICC was, however, postponed at least until 2017, when State Parties to the Rome Statute shall, by virtue of Article 15 bis, revisit this question and decide upon it. 17 That aggression qualifies as an international crime giving rise to individual criminal responsibility gains approval from various international law scholars . Already prior to the establishment of the post-WWII military tribunals, the Czechoslovak legal expert Bohuslav Ečer declared: “Aggressive war is a crime, and by its character an international crime, because it aims against peace and international order. /…/ Not only the aggressor States as such, but also their rulers and military leaders are personally responsible in the eyes of the law for the gigantic chain of crimes which compose this war and which are punishable under the criminal laws of the countries affected.” 18 This view has become more prominent in the scholarly literature after the end of the Cold War and the establishment of the ICC. Thus, Antonio Cassese does not have doubts that aggression meets all the criteria of a crime under international law. 19 For Cherif M. Bassiouni aggression is one of the most serious international crimes “deemed part of jus cogens”. 20 William Schabbas commends the inclusion of the crime of aggression into the Rome Statute of the ICC as “a return to the logic of the Nuremberg trial”. 21 Robert Heinsch states that there are “four commonly accepted international crimes: aggression, genocide, crimes against humanity and war crimes” 22 and that the definition of Article 8 bis is another step towards strengthening a core of these crimes. I. I. Karpecz agrees that aggression “is recognized as an international crime” . 23 All this seems to suggest that aggression could 18 EČER, B.: The Punishment of War Criminals, confidential document dated 10 October 1942 submitted to the London International Assembly, Commission II on the Trial of War Criminals, reprinted in LANKEVICH, G. J. (ed.): Archives of the Holocaust, Vol. 16, Garland, New York and London, 1990, pp. 1-4. 19 CASSESE, A.: On Some Problematical Aspects of the Crime of Aggression, Leiden Journal of International Law, 2007, Vol. 20, No. 4, pp. 841-849. 20 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 138. 21 SCHABBAS, W. A.: An Introduction to the International Criminal Court . Fourth Edition. Cambridge University Press, Cambridge, 2011, p. 146. 22 HEINSCH, R.: The Crime of Aggression After Kampala: Success or Burden for the Future ?, Goettingen Journal of International Law, 2010, Vol. 2, No. 2, pp. 713-743. 23 KARPETZ, I. I.: International Criminal Law and International Crimes, Touro Journal of International Law, 1988-1990, Vol. 1, pp. 332 (325-334). 17 See also MCDOUGALL, C.: The Crime of Aggression Under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2013.

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VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ be viewed as a “paradigmatic crime” not only with respect to States 24 but also at the individual level. 2.2 No, Aggression Is Not An International Crime The cohort of those who are not persuaded that aggression should qualify as an international crime is, however, quite numerous too. It includes several States as well as various scholars. Disagreements with the criminalization of aggression made themselves heard already at the time at the post-WWII trials. The Tokyo Tribunal in its judgment listed four main arguments that the defense raised against the jurisdiction of the Tribunal over crimes against peace. The arguments postulated that: the Allied Powers had no authority to include in the Charter and designate as justiciable crimes against peace; aggressive war was not per se illegal; war was the act of a nation for which there is no individual responsibility under international law; and the provisions of the Charter were “ ex post facto ” legislation and therefore illegal. 25 The Tribunal rejected all these grounds by referring to the Nuremberg judgment which stated that “the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing”. 26 Yet, the doubts about the inclusion of crimes against peace into the Charters of the two military tribunals were shared by various scholars including some of those coming from the Allied countries. Thus, during the drafting of the Nuremberg Charter, the French expert André Gros noted: “When you say that a state which launches a war has committed a crime, you do not imply that the members of that state are criminals.” 27 The imposition of individual criminal responsibility for crimes against peace in his view might be morally and politically desirable, but it was “not international law”. 28 This view was echoed by the US-based lawyer Franz Schick, who stated that “ de lege ferenda, the judgment of the International Military Tribunal, according to which recourse to illegal war constitutes the commission of a crime for which its perpetrators are individually responsible, is of far-reaching importance. De lege lata, the judgment does not correspond with the rules of general international law”. 29 In a 24 Aggression was labelled as “the paradigmatic crime of State” by the Special Rapporteur James Crawford on the responsibility of States for internationally wrongful acts. Cit. in MCGOLDRICK, D., ROWE, P. J., DONNELLY, E.: The Permanent International Criminal Court: Legal and Policy Issues. Hart Publishing, Oxford, 2004, p. 112. 27 DraftArticleonDefinitionof“Crimes”,SubmittedbyFrenchDelegation, July 19, 1945, in JACKSON, R.H.: Report of the United States Representative to the International Conference on Military Trials, 1945, p. 293. 28 Ibid., p. 297 29 SCHICK, F. R.: Crimes against Peace, Journal of Criminal Law and Criminology, 1947-1948, Vol. 38, No. 5, p. 456. 25 Cit. in Historical Review of Developments relating to Aggression, op. cit., p. 170. 26 International Military Tribunal (Nuremberg), Judgment of 1 October 1946, p. 445.

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AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? similar vein, the German lawyer Carl Schmitt opined that criminalizing war was “not only something new but also something of a new type”. 30 After the break during the Cold War, the criminalization of aggression arose again as an issue in the 1990s, in connection with the drafting of the Rome Statute. Here again, the proposal to include the crime of aggression among the crimes in the jurisdiction of the ICC was not uniformly accepted. In the course of the negotiations several states expressed their reservations in this respect. The United States held that “acts not clearly criminalized under international law should be excluded from the definition. It is, therefore, premature to attempt to define a crime of aggression in terms of individual criminal responsibility”. 31 Israel added that “in view of the dangers of politicization, /it/ was not persuaded that conditions were yet ripe for the inclusion of the crime of aggression in the Statute of the Court”. 32 In Morocco´s view, “to include the crime of aggression would be premature”. 33 Libya went even further speaking about “so- called aggression”. 34 Moreover, many of the states pronouncing in favour of including the crime of aggression in the Rome Statute did it on the condition that the crime itself and the role of the UN Security Council in its determination would be defined. Once this happened in 2010, several states (Israel, the United Kingdom, the US) indicated that the final compromise was from their point of view unsatisfactory. 35 Voices opposing the qualification of aggression as an international crime come from the academic community as well. Bassiouni and Ferencz consider that the “the notion of “crimes against peace” /…/ has simply fallen into desuetude (sic)” and “it is hard to argue that aggression constitutes a crime under international law”. 36 Michael Glennon refers to the overbroad and vague nature of the definition of the crime of aggression, the insufficient role reserved to the UN Security Council, the violation of the principle of legality ( nullum crimen sine lege ) and the dearth of precedents. 37 Marko Milanović expresses uncertainty as to whether the Kampala definition of the crime of aggression and the conditions set for its application meet the principle of legality. 38 Sean 30 Cit. in PRATT, V.: De la criminalisation de la guerre: Carl Schmitt à Nuremberg, Carl Schmitt et Nuremberg, in SUR, S. (ed.): Carl Schmitt. Concepts et usages, Biblis, Paris, 2014, p. 147. 31 UN Doc. A/CONF.183/SR.5, Diplomatic Conference – 5th Plenary Meeting, 17 June 1998, par. 61. 32 UN Doc. A/CONF.183/SR.6, Diplomatic Conference – 6th Plenary Meeting, 17 June 1998, par. 41. 35 See Statements by States Parties (United Kingdom) and non-State Parties (Israel, the US) in explanation of position after the adoption of resolution RC/Res.6, on the crime of aggression, in Review Conference of the Rome Statute of the International Criminal Court, Official Records, 2010, pp. 122-127. 36 BASSIOUNI, M. Ch., FERENCZ, B. B.: The Crime Against Peace and Aggression: From Its Origins to the ICC, in BASSIOUNI, M. Ch. (ed.): International Criminal Law, op. cit., p. 133. 37 GLENNON, M. J.: The Blank-Prose Crime of Aggression, Yale Journal of International Law, 2010, Vol. 35, pp. 71-114. 38 MILANOVIĆ, M.: Aggression and Legality: Custom in Kampala, Journal of International Criminal Justice , 2012, Vol. 10, pp. 165-187. 33 Ibid., par. 106. 34 Ibid., par. 82.

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VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ Murphy states that “there emerged from Kampala considerable uncertainties concerning procedural and substantive aspects of how the crime of aggression at the ICC will actually operate”. 39 Whereas some of these comments relate specifically to the Rome Statute of ICC, the reveal the authors’ doubts as to the legal nature of the crime of aggression. 3. Is Aggression an International Crime? – Considerations The previous section has demonstrated that both States and scholars are divided in their view on whether aggression qualifies as an international crime. Whereas a majority assents to this qualification, a minority – encompassing, however, important international players such as the United States – has doubts and reservations. This section gives reasons in support of the former view. Prior to discussing why the crime of aggression does indeed qualify as an international crime, it is necessary to consider the very concept of “international crime” or “crime under international law”. While the two terms are not necessarily synonymous, 40 international legal instruments often use them interchangeably 41 and the practice is followed in this paper. 3.1 The Concept of International Crime International instruments and scholarly literature abound in references to international crimes and crimes under international law. Yet, very few of them are deem it useful to explain what characteristic such crimes actually have. As Bassiouni rightly states, “international crimes have developed to date, without even an agreed-upon definition of what constitutes an international crime, what are the criteria for international criminalization, and how international crimes are distinguished” . 42 He is also right in pointing out that the concept has evolved through an ad hoc and hazardous historical process from declarative to proscriptive and then to prescriptive, i.e. from an agreement on certain shared values to the outlawing and criminalization of acts that violate or threaten such values. In other words, the concept of international crime is anchored more in history and in morality than in legal theory. We know which acts individuals have been for some time prosecuted for internationally; we share the 39 MURPHY, S. D.: The Crime of Aggression at the ICC, in WEILER, M. (ed.), Oxford Handbook on the Use of Force, Oxford University Press, Oxford, 2013, p. 559 (533-560). 40 The term “international crime” was originally reserved for serious violations of international law imputable to States. The concept was introduced by the Special Rapporteur on the responsibility of States for internationally wrongful acts Robert Ago in the 1970s but abandoned by the ILC two decades later. See UN Doc. A/31/10, Report of the International Law Commission on the work of its twenty-eighth session 3 May-23 July 1976, Official Records of the General Assembly, Thirty-first session, Supplement No. 10, 1976, pp. 69-122. 41 The same category of serious crimes (crimes against peace/crime of aggression, crimes against humanity, war crime, and genocide) are labelled as “crimes under international law” in the 1950 Nuremberg Principles and the 1996 Draft Code but as “international crimes” in the 1998 Rome Statute. 42 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 131.

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AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? moral abhorrence at these acts; we are able to name these acts; yet we cannot really explain what makes them so specific and tells them apart from other offences. One of the first actors to try, albeit implicitly, to identify the main characteristic of an international crime was the International Criminal Tribunal for the Former Yugoslavia (hereafter the ICTY). In its 1995 decision in the Tadić Case , 43 the Appeals Chamber of the ICTY had to decide which acts counted as violations of the laws or customs of war falling under Article 3 of its Statute. It concluded that such acts had to meet four conditions: they had to constitute an infringement of a rule of international humanitarian law; the rule had to be customary in nature (or, exceptionally, conventional); the violation had to be serious, that is it had to constitute a breach of a rule protecting important values, and the breach had to involve grave consequences for the victim; and the violation had to entail the individual criminal responsibility of the person breaching the rule. 44 The conditions stricto sensu apply to war crimes only. Yet, they are not necessarily specific for them. The requirements to have a legal basis in international law, be serious in nature and entail individual criminal responsibility might be characteristic of all international crimes. This view is partly shared by international law scholars, though the writings of most of them “are uncertain, if not tenuous, as to what they deem to be the criteria justifying the establishment of crimes under international law”. 45 Yet, there are exceptions. Cassese and Gaeta, for instance, assert that international crimes result from the cumulative presence of four elements. 46 These crimes consist of violations of rules of international law; such rules are intended to protect values of the whole international community and consequently bind all states and individuals; there is a universal interest in repressing such crimes; and no functional immunity applies to the perpetrators of such crimes. 47 The first two elements are identical as under the ICTY definition. Yet, unlike the Tribunal, Cassese and Gaeta do not see individual criminal responsibility as an element of an international crime. For them, this feature stems from the nature of the violated rule, i.e. from it being intended to protect important universal values. No evidence is given in support of this claim, which, however, is far from self-evident. The third element should most probably be considered as a variation to the second one, as the universal interest in repressing a certain crime would most probably flow from its universal nature. The last element, relating to immunity, seems to be more 43 ICTY, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. 44 Ibid., par. 94. 45 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 132. 46 CASSESE, A., GAETA, P. (eds): Cassese´s International Criminal Law. Third Edition. Oxford University Press, Oxford, 2013, pp. 20-21. 47 The list of crimes which according to Cassese and Gaeta have these elements encompasses, in addition to the four classical crimes under international law (aggression, genocide, crimes against humanity, war crimes), also torture and international terrorism. Ibid., p. 21.

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VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ of a consequence of an act qualifying as an international crime than a condition for this qualification. Another author to give a definition of an international crime is Bassiouni. For him, there are five criteria applicable to the policy of international criminalization: the act affects a significant international interest; it constitutes an egregious conduct deemed offensive to the commonly shared values of the world community; it has transnational implications; it is harmful to an internationally protected person or interest; it does not fall under any of the previous categories yet it can best be suppressed by international criminalization. 48 To these criteria, Bassiouni adds ten penal characteristics drawn from international conventions that encompass, among other things, an explicit recognition of a conduct as constituting an international crime, an implicit recognition of its penal nature, the criminalization of this conduct, duty to prosecute, duty/right to extradite or no defence of superior orders. 49 Based on the accumulation of all these elements, Bassiouni lists 28 acts that in his view count as international crimes. 50 These crimes are further divided into various categories – aggression and other “classical” international crimes fall under that of jus cogens crimes. 51 Bassiouni admits that “there is no scholarly consensus on the methods by which to ascertain the existence of a peremptory norm, nor to assess its significance or determine its content”. 52 Despite that he believes that jus cogens crimes can be distinguished. First, they have to rise “to a level above that stemming from specific treaty obligations, so that it can therefore be deemed part of general international law”. 53 Secondly, they have to threaten the peace and security of humankind and shock the conscience of humanity. 54 Thirdly, historical evolution 50 These are: aggression, mercenarism, genocide, crimes against humanity, war crimes, nuclear terrorist, theft of nuclear materials, apartheid, slavery and slave-related practices, torture and other forms of cruel, unhuman or degrading treatment, unlawful human experimentation, piracy, aircraft hijacking and unlawful acts against international air safety, unlawful acts against the safety of maritime navigation and the safety of platform on the high seas, threat and use of force against internationally protected persons, crimes against United Nations and associated personnel, taking of civilian hostages, use of explosives, unlawful use of the mail, financing of terrorism, unlawful traffic in drugs and related drug offences, organized crime, destruction and/or theft of national treasures, unlawful acts against certain internationally protected elements of the environment, international traffic in obscene materials, falsification and counterfeiting, unlawful interference with submarine cables, and bribery of foreign public officials. Ibid., pp. 134-135. 51 Other crimes to fall under this category are: piracy, slavery, slave related practices, and trafficking in human beings, , torture and other forms of cruel, unhuman or degrading treatment, unlawful human experimentation, apartheid, and mercenarism. Ibid., p. 138. 52 BASSIOUNI, Ch. M.: International Crimes: Jus Cogens and Obligatio Erga Omnes, Law and Contemporary Problems, 1996, Vol. 59, p. 67 (63-74). 48 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 133. 49 Ibid., pp. 133-134.

53 Ibid., p. 68. 54 Ibid., p. 69.

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