Corporate Governance, Promises Kept, Promises Broken (Macey), could be best summarized as a critique to the policies and corporate governance regulations fostered by the administration with the goal of improving governance. Macey argues that the administration has given impulse to certain corporate governance mechanisms and institutions which are rather ineffective, restraining the adoption and improvement of others which do a better job in improving corporate governance and in achieving the ends pursued.
My contention is that the premises over which he builds his argument, even thought might be of general acceptance in the United States, are misleading, as they are incapable of assessing the nature of corporations’ interaction with stakeholders and society, as well as the function of property in it. Macey’s view of corporate governance is dyadic. I will call it the Dyadic Theory. This means that he sees corporate governance and its ends as a dual relationship between management (and directors) on one side, and shareholders on the other.
No other actor is involved in this relationship, in which the main purpose of corporate governance is to promote the implementation of the promises-contracts undertaken by management with corporation’s shareholders. This is a mistake that requires a strong critique, as this is one of the pillars over which Macey constructs his argument.
The author admits as a given fact the abovementioned dyadic relation. Even though he is aware of the different standpoint which other countries give to corporate governance and to the roles and persons to which agents-fiduciaries are actually obliged in this regard, in a particularly skeletal argument he devices such different position and admits his own (American) comprehension of the nature of corporate governance, without a broader justification.
By doing so, Macey neglects from apprehending the meaning that the Enron, WorldCom and lately, the Lehman Brothers, Fannie Mae, Freddie Mac, Merrill Lynch, and AIG(to mention a few examples) meltdowns’, has had over the way in which corporate America is seen, and is more likely to be seen, by shareholders and the society, in the present and future.
Such meltdown taught us a huge lesson: corporations and property (need to) comply with a social function. It is unrealistic to say that corporations only keep a relationship with their shareholders. The society also has interest vested in corporation, and has implicitly adopted certain promises which such corporation and vice versa. Society has adopted the compromise of allowing the peaceful and normal development of the company’s activities, and the company has admitted to undertake its social enterprise without generating negative effects and externalities over the society.
The society has, however, allowed the furtherance of such companies, under the assumption that such corporations, as well as the ownership rights which shareholders have over them, will be used in furtherance of the general welfare of society and not only of the shareholders alone. Subsequently, a different argument can be made, whereby corporations have duties and not only rights in regard to society, especially when the company’s social enterprise is likely to have (sooner or later) a negative or positive impact over people different from the shareholders.
Stakeholders, the government and the society, are by means of this argument included within the scope of the actors which would arguably need to play a role over the corporate governance of companies. I will call this, the Triadic Theory. Further, it may be argued that the bigger the corporation is, the larger the interest that stakeholders, government and society, have over its corporate governance mechanisms. The Dyadic Theory of corporate governance cannot be perpetually implemented at the expense of society’s general welfare.
This is particularly true when the corporation’s growth or failure is likely to have macroeconomic impacts over society (e.g. Citibank, Chrysler). If corporations expect that the government (this is, the people by means of the tax they (we) pay) passes bailout regulations and other type of aid to corporations in times of crisis, then it is true that corporate governance cannot be simply about management and shareholders, as it is true that the corporation has assumed certain additional (implicit) obligations, to pursue its activities in a lawful and beneficial way to its stakeholders and society.
When Citibank or AIG pay millions of dollars to its management, few days after the government has spent millions of dollars (of the people) in order to save those companies, than it cannot just be said, that corporate governance is just about shareholders and management. Further, arguably, the right of society over corporate governance does not simply arise in moments of crisis, but rather exists always, as it is apparent that corporations and property have a social function. This argument is thoroughly developed by Von Gierke and Jhering, correspondingly.
All things said, it is crystal clear that underlying Macey’s work, a challenging philosophical, economic, and political issue is at stake, this is: corporate governance is a matter of interest to only two parties (this is shareholders and management)? Or the society has a vested interest in the success of corporations (at least in many of them)? If we adopt the latter alternative, then which would be the mechanisms we should likely prefer?
As Macey puts it, several mechanisms have been implemented as means to fostering corporate governance. Some of them, in my view, respond more to the general interest of society in the company (this is, the Triadic Theory), and others respond more to the Dyadic theory. Thus, the relevant divisions of corporate governance mechanisms do not rely on the effectiveness of said mechanisms, but more in the underlying philosophical question with regard to the function of the state in connection with corporations under the Triadic Theory. The question then is if – under the Triadic Theory – the state should withdraw from exercising and fostering corporate governance mechanisms which do not simply leave to the market sphere the good (or bad) management of corporations.
Mechanisms such as the Securities and Exchange Commission and the Organized Stock Exchange, and the Accounting Rules and the Accounting Industry Regulations, should then be reformed in order to make them more effective, rather than being discarded under not evincing conclusions and arguments. The other mechanisms should be fostered also, but in a different way. This is, they should be fostered in achieving the purposes of Corporate Governance, under the Triadic Theory, with the implications that such approach has.
The first and foremost implication would be that the main end of the corporations and of corporate governance would not be necessarily to maximize the wealth of the shareholders. Rather, such end would be limited by an implicit social norm, according to which the shareholders accept in the moment of incorporation of the company that the maximization of wealth cannot be made at the expense of the society and of third parties. I will call this the Implicit General Welfare Agreement.
The aforesaid is particularly relevant, as its application would have a major impact over the ways in which shareholders, directors and management exercise their roles in certain social enterprises, which, say, generate damaging effects over environment, over health, economic stability, or which foster wars in the Middle East.
This general and rather philosophical assumption needs the support of actual and real mechanisms for this Triadic Theory level of corporate governance. For instance, and as a way of example, I believe that one possible way in which the strongly criticized capture of the boards of directors could be avoided or reduced, by periodically rotating such directors, in order to restrain strong relationships to arise between the latter and management. Further, such measure would solve the problem signaled by Macey, according to which the dual function of directors as advisors and monitors generate the impossibility of an effective control. The schizophrenia annotated by Macey, could also be reduced by adopting Europeans scheme of two types of directors, adding our proposal of rotation every certain period (i.e. one year).
Finally, I believe that creative ways can be found in order to correct the defects of many of corporate governance mechanisms, and they should not be discarded under Macey’s unconvincing critics, which, in addition, depart from a wrong comprehension of the present function that has been granted to corporations.
miércoles, 11 de noviembre de 2009
Joint Enforcement Action and the Iraq Case
The intense activism of the Security Council of the UN pursuant to the restoration of Kuwait’s territorial integrity and sovereignty after Iraq’s invasion as of August, 1990, remains the watermark of joint enforcement action of the Security Council after the end of the Cold War, but its consequences are highly paradoxical.[1] The straightforward resolution with which the Council rejected the invasion of Iraq proved to be an effective tool to enforce Iraq’s withdrawal from Kuwait,[2] but at the same time the Security Council’s intervention came to be throughout time highly criticized.
First, resolution 678 (1990) became a matter of disagreement. The resolution’s authorization to “states” cooperating with Kuwait’s government, to use force against Iraq, unless such country implemented the mandates of resolution 660 before January 15, 1991, was highly controversial. Several members of the Council did not agree on the terms of such resolution.[3] However, the United States promoted what would be the basis of what later came to be known as the Coalition of the Willing, as opposed to the Council’s indeterminacy in decision making in hard cases.[4]
Second, after defeating Iraq, the Council became a de facto administrator of Iraq’s revenues from oil production, as well as a manager of its expenditures.[5] Whatsoever necessary doing such thing could have been, no express justification for doing so derived from the Charter. Third, the embargo conditions imposed on Iraq, as well as the military actions undertaken, derived in a dramatic humanitarian crisis on civilians, without providing a sufficiently legally based trend of action.
Fourth, the issuance of resolution 778 in 1992, which “authorized states to seize revenues from Iraqi petroleum sales and transfer them to the escrow account provided for in resolution 706 (1991)”, seemed to completely exceed the competence of the Council, under the Charter.[6] Fifth, in connection with all the facts abovementioned, the oil-for-food formula became highly illegitimate, and triggered a strong international and domestic opposition against the United States and the Council. And sixth, criticism due to corruption scandals by UN officers and trustees highlighted once again the problems derived from the I-legitimacy of the sanctions imposed over a sovereign state.
The decisions undertaken by the Council after the first days of the invasion, generally viewed, at first glance would seem to have stretched the capacity of the Council to undertake radical measures against aggressor states, as well as to impose harsh sanctions in order to enforce UNs’ Charter, thus endorsing the collective security system.[7] However, if we take a more skeptical look at the facts, we would have to admit that the unity of the Council seemed to have been simultaneously undermined by the authorization to undertake “all necessary measures” to enforce resolution 660 to cooperating states. This is true, as the United States and other states, undertook the measures that they –indeed- considered as appropriate, without the approval of the other members of the Security Council, which throughout time opposed with more intensity to some of the “measures” adopted by the United States on Iraq.
In the end, Iraq’s episode in the early nineties derived in a partial defeat of the collective security system portrayed by the Charter, and in the rise of the Coalition of the Willing, paving thus the road to unilateral intervention which characterized the first decade of the new millennia, under the euphemism of preventive war. Thus, the UN institution was severely hurt, and has been seen since once more as an agent without enough power to deter conflict and safeguard peace.
[1] CANCHOLA GUTIERREZ, Ulises. Analysis of the Resolution Regime of the Security Council. Mexican Annual Review of International Law. Volume 4. P. 88. A close look to the corpus iuris of the Resolutions undertaken by the Security Council is, no doubt, the most extensive, and relevant evidence of the agreement of the member of such Council to undermine Aggression and unlawful attacks to one of the member states of the United Nations.
[2] CANCHOLA GUTIERREZ, Ulises. Ibid. P. 96.
[3] CHESTERMAN, Simon et. Al. Law and Practice of the United Nations. Documents and Commentary. Oxford University Press. 2009. P. 56.
[4] MICIC TAGER, Alexander. El Consejo de Seguridad de Naciones Unidas y la Accion Colectiva: La Cuestion de la Soberania Estatal. Pontificia Universidad Catolica de Chile. Revista Pleyade No. 3. P. 187.
[5] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[6] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[7] CHESTERMAN, Simon et. Al. Ibid. P. 52.
First, resolution 678 (1990) became a matter of disagreement. The resolution’s authorization to “states” cooperating with Kuwait’s government, to use force against Iraq, unless such country implemented the mandates of resolution 660 before January 15, 1991, was highly controversial. Several members of the Council did not agree on the terms of such resolution.[3] However, the United States promoted what would be the basis of what later came to be known as the Coalition of the Willing, as opposed to the Council’s indeterminacy in decision making in hard cases.[4]
Second, after defeating Iraq, the Council became a de facto administrator of Iraq’s revenues from oil production, as well as a manager of its expenditures.[5] Whatsoever necessary doing such thing could have been, no express justification for doing so derived from the Charter. Third, the embargo conditions imposed on Iraq, as well as the military actions undertaken, derived in a dramatic humanitarian crisis on civilians, without providing a sufficiently legally based trend of action.
Fourth, the issuance of resolution 778 in 1992, which “authorized states to seize revenues from Iraqi petroleum sales and transfer them to the escrow account provided for in resolution 706 (1991)”, seemed to completely exceed the competence of the Council, under the Charter.[6] Fifth, in connection with all the facts abovementioned, the oil-for-food formula became highly illegitimate, and triggered a strong international and domestic opposition against the United States and the Council. And sixth, criticism due to corruption scandals by UN officers and trustees highlighted once again the problems derived from the I-legitimacy of the sanctions imposed over a sovereign state.
The decisions undertaken by the Council after the first days of the invasion, generally viewed, at first glance would seem to have stretched the capacity of the Council to undertake radical measures against aggressor states, as well as to impose harsh sanctions in order to enforce UNs’ Charter, thus endorsing the collective security system.[7] However, if we take a more skeptical look at the facts, we would have to admit that the unity of the Council seemed to have been simultaneously undermined by the authorization to undertake “all necessary measures” to enforce resolution 660 to cooperating states. This is true, as the United States and other states, undertook the measures that they –indeed- considered as appropriate, without the approval of the other members of the Security Council, which throughout time opposed with more intensity to some of the “measures” adopted by the United States on Iraq.
In the end, Iraq’s episode in the early nineties derived in a partial defeat of the collective security system portrayed by the Charter, and in the rise of the Coalition of the Willing, paving thus the road to unilateral intervention which characterized the first decade of the new millennia, under the euphemism of preventive war. Thus, the UN institution was severely hurt, and has been seen since once more as an agent without enough power to deter conflict and safeguard peace.
[1] CANCHOLA GUTIERREZ, Ulises. Analysis of the Resolution Regime of the Security Council. Mexican Annual Review of International Law. Volume 4. P. 88. A close look to the corpus iuris of the Resolutions undertaken by the Security Council is, no doubt, the most extensive, and relevant evidence of the agreement of the member of such Council to undermine Aggression and unlawful attacks to one of the member states of the United Nations.
[2] CANCHOLA GUTIERREZ, Ulises. Ibid. P. 96.
[3] CHESTERMAN, Simon et. Al. Law and Practice of the United Nations. Documents and Commentary. Oxford University Press. 2009. P. 56.
[4] MICIC TAGER, Alexander. El Consejo de Seguridad de Naciones Unidas y la Accion Colectiva: La Cuestion de la Soberania Estatal. Pontificia Universidad Catolica de Chile. Revista Pleyade No. 3. P. 187.
[5] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[6] CHESTERMAN, Simon et. Al. Ibid. P. 349.
[7] CHESTERMAN, Simon et. Al. Ibid. P. 52.
New Trends and Risks of Collective Security as a Road to Peace
The fall of the Berlin Wall and the decline of Soviet power during the late eighties put an end to Bipolarity which characterized the global scenario after World War II. It also symbolized the rise of the US as the single planetary super-power thus transforming world order into a Unipolar System. Notwithstanding the aforementioned, during the past two decades the world has witnessed US’ difficulty in consolidating such Pax Americana. US’ vulnerability evidenced by S-11 was nothing else but a symptom of such difficulty. The never-ending Israeli-Palestinian conflict, the growing tension in the Middle East after Iran’s pursuit of nuclear power, the tensions between India and Pakistan, Russian comeback to the geopolitical battle over natural resources in Asia and South America, the complexity of Iraq’s and Afghanistan’s terrorist threat, the menace of North Korea, among other examples, portray an image under which the US will unlikely be able to guarantee peace on its own in case of need. The US requires of international cooperation to reach its goals. Plus, the startling economic growth of India and China during the past 15 years has put such countries once again in the first page of world politics. For the first time in more than 3 centuries world supremacy is heading eastward. A possible interpretation of the world under this trend is that the first decade of 21st century has been characterized by a Multilateral System of international order.
Pursuant to the collective security theories of international peace, it may be argued that the new world order is more likely to achieve peace under a collective security scheme, given the following reasons: (a) no country has an hegemonic power as to destabilize world security, provided that the other countries comply with their duties under the covenants of collective security agreements, (b) almost every existing sovereign state in the planet is bound today by the obligations derived from the UN charter, thus reducing risks such as: (i) the possibility of aggressor countries to purchase raw materials and weapons to non-member states of the UN, (ii) the impossibility to impose legitimate sanctions over aggressor countries not bound by the UN Charter, (iii) the possibility of aggressor countries to find new markets for their own products, and (iv) non compliance with the need of pacific solution of controversies between disputing parties; (c) the high value that global citizens give to the reach of peace, thus mobilizing pressure groups which influence their own sovereign states, pursuant to the reach of peace, (d) the increase of information sources and global communication networks, thus improving information asymmetries and civil society’s monitoring activities over public officers, (e) the depth of the wounds left by WWI and WWII, thus compelling nations to prevent future wars, (f) the growth and deepening of regional security and commercial agreements, as additional mechanisms which deter confronted parties of going to war, (g) a shift – whatsoever not so clear – of American foreign policy, from Bush-Cheney’s Unilateralism to Obama’s Multilateral collaborationism, (h) the increasing economic interdependence between world super powers, which would make more costly for them to go to war that restraining to do so, (i) the increasing importance of the ICC as a punishment and deterrence instrument, and (j) the initial success of the UN in promoting a meeting between the US, Britain, France, Germany, China and Russia, to discuss Iran’s nuclear programme.
Certain difficulties seem to arise under this new scope. The ones that I found most relevant are: (a) The pursuit of nuclear power by several countries which – under the sovereign equality principle – have (at least in principle) equal right to use nuclear power (and weapons?), (b) the aggressive attitude of states which read Obama’s Multilateralism as a sign of weakness, (c) UN’s fragility and its impossibility to solve disputes between – or involving the interest of – superpowers, (d) the lack of existence of a world army completely dependent of the UN and not its member states, (e) the lack of institutionalization of a means to impose liability to the UN and its officers for negligence or misconduct in connection with UN’s duty to safeguard peace, (e) the rise of new powers which appeal to their military strength (i.e. China’s military display of weaponry last week in the celebration of the Peoples Republic 60th anniversary) as an implicit message to support their goals, v.g. China’s claim over certain Japanese islands, Taiwan, the South China Sea, or the Indian state of Arunachal Pradesh, (f) the readiness of certain countries, like China (once again), to put their economic self interest (the purchase of millions or barrels of oil and gas each year) ahead of common sense – as the US did in the Italo-Ethiopian affair – by its reluctance to contemplate sanctions against Iran.
The question ahead of us is if the UN really has the power to solve conflicts involving great powers or if it is doomed by the selfishness and egotism of the governments and economic elites of powerful countries? UN’s actions involving Iran, North Korea, China, Russia, and indeed the US, during the next years, will be a clear sign of the future of world efforts towards the reach of peace? Or are we, instead, witnessing the birth of a new world war era, taking into account Russia’s and China’s indifference to Iran’s pursuit for nuclear power? The resemblance between the Italo-American commercial relation before WWII, and the commercial interdependence between China, Russia, and Iran in our times is, to put it clear, frightening.
Pursuant to the collective security theories of international peace, it may be argued that the new world order is more likely to achieve peace under a collective security scheme, given the following reasons: (a) no country has an hegemonic power as to destabilize world security, provided that the other countries comply with their duties under the covenants of collective security agreements, (b) almost every existing sovereign state in the planet is bound today by the obligations derived from the UN charter, thus reducing risks such as: (i) the possibility of aggressor countries to purchase raw materials and weapons to non-member states of the UN, (ii) the impossibility to impose legitimate sanctions over aggressor countries not bound by the UN Charter, (iii) the possibility of aggressor countries to find new markets for their own products, and (iv) non compliance with the need of pacific solution of controversies between disputing parties; (c) the high value that global citizens give to the reach of peace, thus mobilizing pressure groups which influence their own sovereign states, pursuant to the reach of peace, (d) the increase of information sources and global communication networks, thus improving information asymmetries and civil society’s monitoring activities over public officers, (e) the depth of the wounds left by WWI and WWII, thus compelling nations to prevent future wars, (f) the growth and deepening of regional security and commercial agreements, as additional mechanisms which deter confronted parties of going to war, (g) a shift – whatsoever not so clear – of American foreign policy, from Bush-Cheney’s Unilateralism to Obama’s Multilateral collaborationism, (h) the increasing economic interdependence between world super powers, which would make more costly for them to go to war that restraining to do so, (i) the increasing importance of the ICC as a punishment and deterrence instrument, and (j) the initial success of the UN in promoting a meeting between the US, Britain, France, Germany, China and Russia, to discuss Iran’s nuclear programme.
Certain difficulties seem to arise under this new scope. The ones that I found most relevant are: (a) The pursuit of nuclear power by several countries which – under the sovereign equality principle – have (at least in principle) equal right to use nuclear power (and weapons?), (b) the aggressive attitude of states which read Obama’s Multilateralism as a sign of weakness, (c) UN’s fragility and its impossibility to solve disputes between – or involving the interest of – superpowers, (d) the lack of existence of a world army completely dependent of the UN and not its member states, (e) the lack of institutionalization of a means to impose liability to the UN and its officers for negligence or misconduct in connection with UN’s duty to safeguard peace, (e) the rise of new powers which appeal to their military strength (i.e. China’s military display of weaponry last week in the celebration of the Peoples Republic 60th anniversary) as an implicit message to support their goals, v.g. China’s claim over certain Japanese islands, Taiwan, the South China Sea, or the Indian state of Arunachal Pradesh, (f) the readiness of certain countries, like China (once again), to put their economic self interest (the purchase of millions or barrels of oil and gas each year) ahead of common sense – as the US did in the Italo-Ethiopian affair – by its reluctance to contemplate sanctions against Iran.
The question ahead of us is if the UN really has the power to solve conflicts involving great powers or if it is doomed by the selfishness and egotism of the governments and economic elites of powerful countries? UN’s actions involving Iran, North Korea, China, Russia, and indeed the US, during the next years, will be a clear sign of the future of world efforts towards the reach of peace? Or are we, instead, witnessing the birth of a new world war era, taking into account Russia’s and China’s indifference to Iran’s pursuit for nuclear power? The resemblance between the Italo-American commercial relation before WWII, and the commercial interdependence between China, Russia, and Iran in our times is, to put it clear, frightening.
A Defiant Approach to the Nullum Crimen, Sine Lege Principle
A Defiant Approach to the Nullum Crimen, Sine Lege Principle
in the Context of the Crime of Aggression under the Rome Statute
Introduction
The claim defended in this essay is that the International Criminal Court (hereinafter the “ICC”) has at its disposal persuasive arguments for prosecuting and sentencing persons tried under the charge of Aggression of article 5 of the Rome Statute (hereinafter “RS”), without regard to (a) the provision of paragraph 2, of article 5 (hereinafter “5(2)”) of the RS, and (b) to the Nullum Crimen, Sine Lege principle, consecrated under article 22. Using such arguments should not be seen as a violation of the Nullum Crimen, Sine Lege principle, but rather, as an amendment of such principle, under International Criminal Law common practices.
I
Human rights advocates around the world have raised throughout the last decades the argument that high public officers are liable before the International Criminal Court for perpetrating crimes of Aggression, without regard to the existence or not of a definition of such crime under the rules of the RS. Those persons have not been successful in giving a satisfactory answer as to the reasons that would grant the ICC with such jurisdiction in such cases different from the procedure of articles 121 and 123, nor to the possibility of convicting such persons without violating the Nullum Crimen, Sine Lege principle.
The contention of this paper is that the ICC needs not wait until the States comply with the procedures described under articles 121 and 123 of the RS, which should apply as provided under 5(2). Plus, it is hereby affirmed that under the present circumstances of evolution of (a) the RS, (b) International Public Law, and (c) the evolution of the ICC as a “normative force”, such tribunal could make a broad interpretation of the RS, assuming the competency in such cases, and sentencing the persons tried in them, in contradiction with the usual practice of civil and common law worldwide.
II
The difficulties derived from the application (or non application) of the Nullum Crimen, Sine Lege principle for the enforcement, prosecution and punishment of crimes, under western – common or civil – law are well known. The defendants and defense attorneys in the cases tried by the Nuremberg and Tokyo tribunals insisted fiercely in the impossibility of prosecuting and convicting someone for a crime which had not been enacted prior to its execution.[1]
Further, the International Criminal Tribunal for the Former Yugoslavia (hereinafter “ICTY”) and the International Criminal Tribunal for Rwanda (hereinafter “ICTR”), confronted the same problem, plus the additional difficulty derived from the existence and application of the sibling principle of the Nullum Crimen, Sine Lege principle, namely, the Nullum Poena, Sine Lege Stricta et Previa.[2]
The Tokyo and Nuremberg tribunals, however, used the general argument that it could not be possible to acquit the defendants under the Nullum Crimen, Sine Lege principle, because that would equal to accept that the defendants ignored the “wrong” implicit in their actions. This trickery, however, has been strongly criticized by the positivist school of thought.[3] The arguments used by the Tokyo and Nuremberg tribunals, however, have been used also by the ICTY and the ICTR in their decisions, thus giving a step forward toward the birth of a universal practice of international criminal law, based to a certain extent on natural law.
The two main positions deriving from this debate evince the difficulties which the ICC would have to overcome, pursuant to the crime of Aggression. The competence of the ICC to judge cases involving the crime of Aggression depends, pursuant to 5(2), on the approval of the States of a definition of the crime, and on their approval of the elements of the crime.
My argument is that the ICC under a strict interpretation of the RS would surely need to wait until the approval of the States abovementioned. There are arguments enough, however, to assess that it could rule cases related to such crimes in any moment. The basis for this idea is that the Nullum Crimen, Sine Lege principle was intended originally, to impede arbitrary prosecutions, violations of due process, and unfair and unjust convictions for conducts not previously considered as crimes by a particular sovereign, but the concept of Aggression and its elements is well known by the international community several decades ago. Thus, the mere enunciation of article 5 of the jurisdiction of the ICC on crimes of Aggression should be sufficient to deter persons to commit such crime, pursuant to what I could call the hard core of Aggression.
The concept of Aggression was included in several provisions of the Charter of the United Nations, such as articles 1 and 39.[4] Plus, the hard core of Aggression as a conduct which would violate International Public Law was included under Resolution 3314 of the United Nations, issued in 1974. [5]
In addition to the abovementioned, the Special Working Group on the Crime of Aggression (hereinafter “SWGCA”) which was created since 2002, has been drafting the Elements of the crime of Aggression ever since, trying to take participating parties to approve the draft submitted for the review of the group since 2002.[6]
Notwithstanding the procedural and substantive difficulties that have been raised by different State members of the working group, it is feasible to say that the definition of the crime of Aggression proposed and provisionally agreed by the parties is substantively equal to the definition of Aggression contained under Resolution 3314. Thus, the normative value of the negotiations, pursuant to Resolution 3314, article 5 of the RS, the provisions of the Charter of the United Nations, and the legacy of the last decades of International Public and Criminal Law, implies that the ICC could interpret that the Nullum Crimen, Sine Lege, is relative to the feasibility that a specific State had to acknowledge that the action that was being committed violated the provision of article 5 of the Rome Statute.
This is very important, taking into account the obstructive practices in which States are incurring in order to delay the enforceability of the crime of Aggression over its public officers. The obvious question that could be raised here is: Could someone be charged and convicted by the ICC, notwithstanding the fact that the crime has not been yet defined? And my answer would be “Yes, as the hard core elements of the relevant conduct have already been defined in several treaties, declarations, and agreements, agreed upon by the member states”. This answer can also be supported under two additional arguments.
First, I affirm that the RS and the crime of Aggression need to be looked under the scope of the Pacta Sunt Servanda principle and International Public Law[7]. By signing the RS, States have complied to surrender to the jurisdiction of the ICC and to make its best efforts to contribute in defining the crimes of article 5. Doing counter wise would be against International Public Law, and would be grave evidence that the State is intending not to admit the jurisdiction of the ICC for crimes of Aggression.
Second, the customary practice of international war and crime tribunals is to admit a certain relativity of the Nullum Crimen, Sine Lege Previa, provided that the crime perpetrated is so obvious to be a crime, that no Lege Previa would be needed to prove the obvious. That practice, even though questionable from a positivist standpoint, has a very strong normative power pursuant to peace stability and in connection to atrocities and crimes which may trigger war between States.
If we take a glance to the Elements of the crime of Aggression submitted for the discussion of the Working Group[8], it is apparent that it is simply a repetition of the elements contained under Resolution 3314. Thus, high public officers could not justifiably, from a criminal standpoint, perpetrate a crime of Aggression, as they already knew the normative content of the crime of Aggression.
In support of this idea, the ICC could also invoke article 18 of the Vienna Convention: “Pursuant to article 18 of the Vienna Convention on the Law of Treaties of 1969, States are obliged not to defeat the purpose of the treaty prior to its entry into force”.[9] The lack of use of the crime of Aggression, under the Nulla Poena, Sine Lege argument, thus would depart from an interpretation that would contradict the basis of a very strongly developed tradition of International Public Law.
Finally, the ICC could argue that its competency is derived directly from the axiological function of the crime of Aggression pursuant to the fulfillment of the function of United Nations and the ICC, as organizations whose main aim is the safeguard of peace and human rights. This interpretation would be feasible under article 21 of the United Nations Charter. Moreover, this argument is plausible under the consideration that the Charter is the constitutional framework of the International Community, and that the legal instruments which derive from it shall be interpreted in furtherance of the goals and aims of the former.
III
While I am aware of the enormous task that implies defending in a coherent and solid manner the thesis fostered under this essay I believe that I have portrayed some interesting elements that would allow an extension of the competency of the ICC to cases of Aggression, without the need of further steps by sovereign national States, which, under my point of view, are not really committed to the adoption of a definition of such crime, whereas it attempts against the idea of sovereignty and of impunity for crimes of Aggression.
BIBILIOGRAPHY
ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206.
SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522.
HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997.
Report of the SWGCA, dated 20 February 2009 (ICCASP/7/SWGCA/2)
WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,
Professor of International Law at University College London, United Kingdom. http://untreaty.un.org/cod/avl/ha/da/da.html
Charter of the United Nations. 1945.
Rome Statute.
Elements of Crimes of the Rome Statute.
Resolution 3314 of the United Nations. 1974.
http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false
[1] ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206.
[2] SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522.
[3] HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997.
[4] Charter of the United Nations. Article 1. The Purposes of the United National are: 1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace (…) Article 39. “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 Articles 41 and 42, to maintain or restore international peace and security.
[5] Resolution 3314 of the United Nations. Articles 3 and 4. “Article 1. Aggression is the use of force by one 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, as set out in this definition.
(…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.
Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”
[6] Paragraph 42 of the Report of the SWGCA, dated 20 February 2009 (ICCASP/
7/SWGCA/2)
[7]WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,
Professor of International Law at University College London, United Kingdom. “The Definition has rarely if ever been used for that purpose. It has however been referred to by the International Court of Justice (ICJ) in its consideration of unlawful use of force by States. The ICJ has decided that the provision in article 3, paragraph (g), of the Definition reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)”http://untreaty.un.org/cod/avl/ha/da/da.html
[8] “Elements. 1: The perpetrator was in a position effectively to exercise control over or to direct the political or military action of the State which committed an act of aggression as defined in element 5 of these Elements. 2: The perpetrator was knowingly in that position. 3: The perpetrator ordered or participated actively in the planning, preparation or execution of the act of aggression. 4: The perpetrator committed element 3 with intent and knowledge. 5: An “act of aggression”, that is to say, an act referred to in United Nations. General Assembly resolution 3314 (XXIX) of 14 December 1974, was committed by a State.6: The perpetrator knew that the actions of the State amounted to an act of aggression. 7: The act of aggression, by its character, gravity and scale, constituted a flagrant violation of the Charter of the United Nations, 8: The perpetrator had intent and knowledge with respect to element 7.”
[9] http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false
in the Context of the Crime of Aggression under the Rome Statute
Introduction
The claim defended in this essay is that the International Criminal Court (hereinafter the “ICC”) has at its disposal persuasive arguments for prosecuting and sentencing persons tried under the charge of Aggression of article 5 of the Rome Statute (hereinafter “RS”), without regard to (a) the provision of paragraph 2, of article 5 (hereinafter “5(2)”) of the RS, and (b) to the Nullum Crimen, Sine Lege principle, consecrated under article 22. Using such arguments should not be seen as a violation of the Nullum Crimen, Sine Lege principle, but rather, as an amendment of such principle, under International Criminal Law common practices.
I
Human rights advocates around the world have raised throughout the last decades the argument that high public officers are liable before the International Criminal Court for perpetrating crimes of Aggression, without regard to the existence or not of a definition of such crime under the rules of the RS. Those persons have not been successful in giving a satisfactory answer as to the reasons that would grant the ICC with such jurisdiction in such cases different from the procedure of articles 121 and 123, nor to the possibility of convicting such persons without violating the Nullum Crimen, Sine Lege principle.
The contention of this paper is that the ICC needs not wait until the States comply with the procedures described under articles 121 and 123 of the RS, which should apply as provided under 5(2). Plus, it is hereby affirmed that under the present circumstances of evolution of (a) the RS, (b) International Public Law, and (c) the evolution of the ICC as a “normative force”, such tribunal could make a broad interpretation of the RS, assuming the competency in such cases, and sentencing the persons tried in them, in contradiction with the usual practice of civil and common law worldwide.
II
The difficulties derived from the application (or non application) of the Nullum Crimen, Sine Lege principle for the enforcement, prosecution and punishment of crimes, under western – common or civil – law are well known. The defendants and defense attorneys in the cases tried by the Nuremberg and Tokyo tribunals insisted fiercely in the impossibility of prosecuting and convicting someone for a crime which had not been enacted prior to its execution.[1]
Further, the International Criminal Tribunal for the Former Yugoslavia (hereinafter “ICTY”) and the International Criminal Tribunal for Rwanda (hereinafter “ICTR”), confronted the same problem, plus the additional difficulty derived from the existence and application of the sibling principle of the Nullum Crimen, Sine Lege principle, namely, the Nullum Poena, Sine Lege Stricta et Previa.[2]
The Tokyo and Nuremberg tribunals, however, used the general argument that it could not be possible to acquit the defendants under the Nullum Crimen, Sine Lege principle, because that would equal to accept that the defendants ignored the “wrong” implicit in their actions. This trickery, however, has been strongly criticized by the positivist school of thought.[3] The arguments used by the Tokyo and Nuremberg tribunals, however, have been used also by the ICTY and the ICTR in their decisions, thus giving a step forward toward the birth of a universal practice of international criminal law, based to a certain extent on natural law.
The two main positions deriving from this debate evince the difficulties which the ICC would have to overcome, pursuant to the crime of Aggression. The competence of the ICC to judge cases involving the crime of Aggression depends, pursuant to 5(2), on the approval of the States of a definition of the crime, and on their approval of the elements of the crime.
My argument is that the ICC under a strict interpretation of the RS would surely need to wait until the approval of the States abovementioned. There are arguments enough, however, to assess that it could rule cases related to such crimes in any moment. The basis for this idea is that the Nullum Crimen, Sine Lege principle was intended originally, to impede arbitrary prosecutions, violations of due process, and unfair and unjust convictions for conducts not previously considered as crimes by a particular sovereign, but the concept of Aggression and its elements is well known by the international community several decades ago. Thus, the mere enunciation of article 5 of the jurisdiction of the ICC on crimes of Aggression should be sufficient to deter persons to commit such crime, pursuant to what I could call the hard core of Aggression.
The concept of Aggression was included in several provisions of the Charter of the United Nations, such as articles 1 and 39.[4] Plus, the hard core of Aggression as a conduct which would violate International Public Law was included under Resolution 3314 of the United Nations, issued in 1974. [5]
In addition to the abovementioned, the Special Working Group on the Crime of Aggression (hereinafter “SWGCA”) which was created since 2002, has been drafting the Elements of the crime of Aggression ever since, trying to take participating parties to approve the draft submitted for the review of the group since 2002.[6]
Notwithstanding the procedural and substantive difficulties that have been raised by different State members of the working group, it is feasible to say that the definition of the crime of Aggression proposed and provisionally agreed by the parties is substantively equal to the definition of Aggression contained under Resolution 3314. Thus, the normative value of the negotiations, pursuant to Resolution 3314, article 5 of the RS, the provisions of the Charter of the United Nations, and the legacy of the last decades of International Public and Criminal Law, implies that the ICC could interpret that the Nullum Crimen, Sine Lege, is relative to the feasibility that a specific State had to acknowledge that the action that was being committed violated the provision of article 5 of the Rome Statute.
This is very important, taking into account the obstructive practices in which States are incurring in order to delay the enforceability of the crime of Aggression over its public officers. The obvious question that could be raised here is: Could someone be charged and convicted by the ICC, notwithstanding the fact that the crime has not been yet defined? And my answer would be “Yes, as the hard core elements of the relevant conduct have already been defined in several treaties, declarations, and agreements, agreed upon by the member states”. This answer can also be supported under two additional arguments.
First, I affirm that the RS and the crime of Aggression need to be looked under the scope of the Pacta Sunt Servanda principle and International Public Law[7]. By signing the RS, States have complied to surrender to the jurisdiction of the ICC and to make its best efforts to contribute in defining the crimes of article 5. Doing counter wise would be against International Public Law, and would be grave evidence that the State is intending not to admit the jurisdiction of the ICC for crimes of Aggression.
Second, the customary practice of international war and crime tribunals is to admit a certain relativity of the Nullum Crimen, Sine Lege Previa, provided that the crime perpetrated is so obvious to be a crime, that no Lege Previa would be needed to prove the obvious. That practice, even though questionable from a positivist standpoint, has a very strong normative power pursuant to peace stability and in connection to atrocities and crimes which may trigger war between States.
If we take a glance to the Elements of the crime of Aggression submitted for the discussion of the Working Group[8], it is apparent that it is simply a repetition of the elements contained under Resolution 3314. Thus, high public officers could not justifiably, from a criminal standpoint, perpetrate a crime of Aggression, as they already knew the normative content of the crime of Aggression.
In support of this idea, the ICC could also invoke article 18 of the Vienna Convention: “Pursuant to article 18 of the Vienna Convention on the Law of Treaties of 1969, States are obliged not to defeat the purpose of the treaty prior to its entry into force”.[9] The lack of use of the crime of Aggression, under the Nulla Poena, Sine Lege argument, thus would depart from an interpretation that would contradict the basis of a very strongly developed tradition of International Public Law.
Finally, the ICC could argue that its competency is derived directly from the axiological function of the crime of Aggression pursuant to the fulfillment of the function of United Nations and the ICC, as organizations whose main aim is the safeguard of peace and human rights. This interpretation would be feasible under article 21 of the United Nations Charter. Moreover, this argument is plausible under the consideration that the Charter is the constitutional framework of the International Community, and that the legal instruments which derive from it shall be interpreted in furtherance of the goals and aims of the former.
III
While I am aware of the enormous task that implies defending in a coherent and solid manner the thesis fostered under this essay I believe that I have portrayed some interesting elements that would allow an extension of the competency of the ICC to cases of Aggression, without the need of further steps by sovereign national States, which, under my point of view, are not really committed to the adoption of a definition of such crime, whereas it attempts against the idea of sovereignty and of impunity for crimes of Aggression.
BIBILIOGRAPHY
ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206.
SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522.
HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997.
Report of the SWGCA, dated 20 February 2009 (ICCASP/7/SWGCA/2)
WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,
Professor of International Law at University College London, United Kingdom. http://untreaty.un.org/cod/avl/ha/da/da.html
Charter of the United Nations. 1945.
Rome Statute.
Elements of Crimes of the Rome Statute.
Resolution 3314 of the United Nations. 1974.
http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false
[1] ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206.
[2] SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522.
[3] HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997.
[4] Charter of the United Nations. Article 1. The Purposes of the United National are: 1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace (…) Article 39. “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 Articles 41 and 42, to maintain or restore international peace and security.
[5] Resolution 3314 of the United Nations. Articles 3 and 4. “Article 1. Aggression is the use of force by one 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, as set out in this definition.
(…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.
Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”
[6] Paragraph 42 of the Report of the SWGCA, dated 20 February 2009 (ICCASP/
7/SWGCA/2)
[7]WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,
Professor of International Law at University College London, United Kingdom. “The Definition has rarely if ever been used for that purpose. It has however been referred to by the International Court of Justice (ICJ) in its consideration of unlawful use of force by States. The ICJ has decided that the provision in article 3, paragraph (g), of the Definition reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)”http://untreaty.un.org/cod/avl/ha/da/da.html
[8] “Elements. 1: The perpetrator was in a position effectively to exercise control over or to direct the political or military action of the State which committed an act of aggression as defined in element 5 of these Elements. 2: The perpetrator was knowingly in that position. 3: The perpetrator ordered or participated actively in the planning, preparation or execution of the act of aggression. 4: The perpetrator committed element 3 with intent and knowledge. 5: An “act of aggression”, that is to say, an act referred to in United Nations. General Assembly resolution 3314 (XXIX) of 14 December 1974, was committed by a State.6: The perpetrator knew that the actions of the State amounted to an act of aggression. 7: The act of aggression, by its character, gravity and scale, constituted a flagrant violation of the Charter of the United Nations, 8: The perpetrator had intent and knowledge with respect to element 7.”
[9] http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false
Suscribirse a:
Entradas (Atom)
