The United States of America and the Crime of Aggression This book traces the position of the United States of America on aggression, beginning with the Declaration of Independence up to 2020, covering the four years of the Trump Administration. The decision of the Assembly of States Parties to the International Criminal Court to activate the Court’s jurisdiction over the crime of aggression in 2018 has added further value to a book concerning the position and practice of one of the most influential states, a global military power and Permanent Member of the UN Security Council. Organised along chronological lines, the work examines whether, or to what extent, the US position has evolved over time. The book explores how the definition of the crime can affect the US, notwithstanding its failure to ratify the Rome Statute. It also shows that the US practice and opinio iuris about the law applicable to the use of force might influence, as it has done in the past, the law itself. The work will be a valuable guide for students, academics and professionals with an interest in international criminal law. Giulia Pecorella is Senior Lecturer in Law at Middlesex University, UK. The United States of America and the Crime of Aggression Giulia Pecorella First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Giulia Pecorella T he right of Giulia Pecorella to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. A ll rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. T rademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. B ritish Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library L ibrary of Congress Cataloging-in-Publication Data Names: Pecorella, Giulia, author. Title: The United States of America and the crime of aggression / Giulia Pecorella. Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. | Includes bibliographical references and index. | Contents: Introduction—Prelude to the criminalization of aggression : the bygone era (1776–1917)—The international delict of aggression (1918–1944)—The International crime of aggression (1945–1952)—An indefinable aggression (1952–2002)— A treaty-based crime of aggression (2003–2020)—Conclusion. Identifiers: LCCN 2020055516 (print) | LCCN 2020055517 (ebook) | ISBN 9780367207342 (hardback) | ISBN 9781032005058 (paperback) | ISBN 9780429263149 (ebook) Subjects: LCSH: Aggression (International law). | International and municipal law—United States. | United States—Foreign relations. Classification: LCC KZ7140 .P43 2021 (print) | LCC KZ7140 (ebook) | DDC 341.6/2—dc23 LC record available at https://lccn.loc.gov/2020055516 LC ebook record available at https://lccn.loc.gov/2020055517 I SBN: 978-0-367-20734-2 (hbk) I SBN: 978-1-032-00505-8 (pbk) I SBN: 978-0-429-26314-9 (ebk) T ypeset in Galliard b y Apex CoVantage, LLC A Francesco Contents Preface x Acknowledgements xv Introduction 1 1 Prelude to the criminalisation of aggression: the bygone era (1776–1917) 4 1 Introduction 4 2 Declaration of Independence, neutrality doctrine and self-defence: a common natural-law ground 5 3 Time for international conferences 12 4 The search for justifications 20 5 The First World War 26 6 Conclusion 32 Bibliography 32 2 The international delict of aggression (1918–1944) 35 1 Introduction 35 2 The Paris Peace Conference 36 2.1 The US and the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 36 2.2 The Covenant of the League of Nations 42 3 Conferences and multilateral agreements in the 1920s 44 4 The legal grounds for interpositions of a temporary character: US practice during the 1920s 47 5 The Pact of Paris 48 viii Contents 6 Conferences and multilateral agreements in the 1930s 53 6 .1 Aggression and the principle of non-intervention in the internal affairs of an American state 53 6 .2 Disarmament and aggression 57 7 The Pact of Paris in the 1930s 59 8 Neutrality and self-defence 66 9 Aggression during the Second World War 73 9 .1 A new international organisation for the maintenance of peace 73 9 .2 The United Nations War Crimes Commission 74 1 0 Conclusion 80 B ibliography 81 3 The international crime of aggression (1945–1952) 85 1 Introduction 85 2 A new year’s change 86 3 Regional vs universal aggression 89 3 .1 (a) A rticle 2(4) of the Charter of the United Nations 90 3 .1 (b) A rticle 51 of the Charter of the United Nations 91 3 .1 (c) C ollective security under the Charter of the United Nations 93 3 .2 Informal negotiations dealing with the treatment of war criminals 94 4 London 95 5 Nuremberg 104 6 Tokyo 117 7 Subsequent Nuremberg Trials 125 8 The Nuremberg principles blowing in the wind 129 9 Individual and collective defence in the second half of the 1940s 136 1 0 Conclusion 141 B ibliography 142 4 An indefinable aggression (1952–2002) 146 1 Introduction 146 2 US practice during the Cold War: interventions in Latin America 146 3 US practice during the Cold War: self-defence 151 4 US practice during the Cold War: aggression as an instrument of propaganda 161 5 Resolution 2625 (1970) 163 Contents ix 6 Resolution 3314 (1974) 164 7 The US and the outer space 172 8 1990 Persian Gulf War 176 8.1 Iraq: the first Gulf War and the debate at the UN level 176 8.2 Iraq: the debate on the idea of an international tribunal 179 9 Towards the adoption of the ICC Statute 181 10 Conclusion 185 Bibliography 186 5 A treaty-based crime of aggression (2003–2020) 191 1 Introduction 191 2 The Kampala Review Conference 192 2.1 The US position in Kampala 192 2.2 The rationale behind the US position: customary law and universal jurisdiction 197 2.3 The Kampala amendment 201 2.4 The ‘character’ factor in the threshold clause 207 2.4.1 Humanitarian intervention 208 2.4.2 Self-defence 220 2.4.2 (a) The notions of ‘armed attack’ and pre-emptive self-defence 222 2.4.2 (b) The 2003 Iraqi War 231 2.4.2 (c) (Self-)defences in Syria 243 2.4.2 (d) The US, the UN Charter and the notion of ‘attack’ in the cyberspace 248 2.4.2 (e) The US, the UN Charter and the notion of ‘attack’ in the outer space 252 3 The US and the crime of aggression after the Kampala Review Conference 256 4 Conclusion 260 Bibliography 261 Conclusion 267 Index 270