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Summary

INTRODUCTION

In the previous Chapters, it was discussed that in the aftermath of transboundary damage, two different but parallel legal regimes with different responsibilities can be applicable. It is submitted by this thesis that the operation of cross-border pipelines is often considered as a hazardous but non-prohibited activity under international law. A non-prohibited activity, however, could be considered as a wrongful activity when the source state has breached its international obligations with respect to the lawful operation of the pipelines. Such violations of international obligations give rise to state responsibility. Thus, the responsibility of the source state for an internationally wrongful act, which is governed by the rules of international law concerning the responsibility of the state for international wrongful acts, will be situated with the secondary norms of international law.

Furthermore, in this Chapter the secondary norms of international law, which will be imposed only when the primary norms of international law have been breached, will be discussed under the provisions of the conventions mentioned. Therefore, the current Chapter is aimed at addressing the responsibility of states for breach of their primary obligations. Generally speaking the Draft Articles on State Responsibility are adopted by the International Law Commission to codify customary international law in relation to state responsibility. Meanwhile, international and regional instruments sporadically include provisions on state responsibility for the non-fulfilment of their requirements as well as provisions addressing the issue of liability and redress in the context of trans-boundary damage. A question may arise about the potential overlap between the ILC Articles on State Responsibility and treaty law. Indeed, as stated in Article 55, based on the maxim “Lex specialis”, rules enunciated in treaties should be given priority over the ILC Articles on state responsibility. Thus, as Roe & Happold note, the ILC Articles on State Responsibility are often the right destination, but not the right starting point.1 Therefore, in the current Chapter first the obligations arising out of the treaties will be discussed and second the ILC Articles on State Responsibility will be studied.

In the current Chapter the UNCLOS Convention, the ECT, the Espoo Convention, the UNECE Conventions, the International Watercourse Convention and Kuwait Regional Convention will be discussed.

Summary

INTRODUCTION

A pipeline, as discussed in the previous Chapter is a cost-effective and relatively safe tool for the transportation of oil and gas. Pipelines are extensively used for the terrestrial and submarine transportation of gas. In addition, there are many offshore pipelines for transporting oil from offshore facilities to coasts as well as transmission pipelines which transport oil from one coast to another. Examples include pipelines in the Persian Gulf and in the North Sea. However, provided by various pipeline accident databases, oil and gas pipelines, including cross-border pipelines, can pose major risks both in the construction and operation periods. This is because pipelines are so-called large-scale industrial activities which not only carry flammable and highly unpurified substances, which may pollute the environment, but also the building of a pipeline, which is laid down over long distances, may have adverse impacts on the environment. The first research question asks about the potential harms associated with the construction and operation of (crossborder) pipelines. To answer this question, examining the actual risks of the construction and operation of cross-border pipelines is the first step and identifying trans-boundary damage which might be caused as a result of those accidents is the second step which will be taken in this Chapter.

Oil and gas pipelines are categorized as risky and hazardous activities. This is mainly because they are used to transport a large amount of natural gas or crude oil over a long distance. Further, for technical and economic reasons, natural gas should be transported at high pressures. This increases the possibility of causing major accidents with personal injuries, environmental damage and economic losses. Therefore, unsurprisingly, there have in fact been numerous cross-border pipeline accidents, although exact numbers are difficult to ascertain.

In order to shed some light on the actual risks accompanying pipelines, reports gathered concerning cross-border and cross-country pipeline accidents will be analyzed. Indeed, data on pipeline accidents is mostly gathered by the national and international agencies focusing on the scale and the resulting harm either for national purposes or for commercial interests. Hence, although a few reports in relation to oil and gas pipeline accidents have been prepared at international and regional levels, none of them have specifically dealt with cross-border pipeline accidents.

Summary

The crime of aggression is the criminalisation of the unlawful use of force. This is conduct that has a political dimension by definition and triggers sensitivity in the sense that even the slightest suggestion that the crime has been committed will be hotly debated and may lead to angry reactions. This will certainly be even more the case if it comes to an investigation or prosecution. It is therefore not an easy exercise to embark on writing a monograph on the crime of aggression. Very few books have been published on the extraordinary case of the crime of aggression, which is at the same time an international crime of particular relevance currently and one for which no prosecution has yet taken place. The crime was inserted into the Statute of the International Criminal Court in 2010.

The first edition of this book appeared in 2010 just before the Kampala review conference. The book was well received and frequently used. It played a role in the formulation of the definition of the crime. Gerhard Kemp now surprises the reader with a second edition. This second edition fully incorporates the results of the Kampala conference. It has kept the structure of the first edition to a large extent, but expanded on the newly inserted Articles 8bis, 15bis and 15ter ICC Statute. In addition, the author has included a new Part V on the national and regional prosecution of the crime of aggression. That chapter provides case studies of the two European states that have been the most active in applying universal jurisdiction: Spain and Belgium. These examples demonstrate how disputed the use of universal jurisdiction is. States that do prosecute international crimes do not receive only applause, but must anticipate damage to their international relations or even fear reprisals. As may be expected, this risk is even greater where one state passes judgment on the conduct of another in the crime of aggression.

Gerhard Kemp acknowledges this in Chapter VIII, Concluding remarks: “The complementarity imperative is supposed to make the application of international criminal law before domestic courts the default option of the international criminal justice project. The crime of aggression poses legal and political complexities that put it in a different category than the other core crimes.

Summary

THE PROCESS TO ADOPT A DEFINITION OF AGGRESSION AND CONDITIONS FOR THE EXERCISE OF JURISDICTION BY THE ICC

The aim of this chapter is to describe and analyse some of the important debates and processes that resulted in the adoption of the necessary amendments to the Rome Statute to provide for effective ICC jurisdiction over the crime of aggression. The different approaches that emerged in the aftermath of the Rome Conference are highlighted. The aim is not to reproduce or summarise the travaux préparatoires of the adoption of the amendments to the Rome Statute of the ICC at the 2010 Review Conference in Kampala. That has been done elsewhere. Where appropriate, reference is made to the relevant drafts, nonpapers, reports, country proposals and other relevant materials.

IN THE AFTERMATH OF THE ROME DIPLOMATIC CONFERENCE: THE PROPOSALS AT THE PREPARATORY COMMISSION

Since the adoption of the Rome Statute of the ICC in 1998, the process prompted by Article 5(2) to find a suitable definition of aggression, involved many discussions at diplomatic and legal-technical level. A number of issues remained to be finalised, inter alia the Elements of Crimes and the Rules of Procedure and Evidence. At the first session of the Preparatory Commission (which had the task of carrying these processes forward) a group of states (mainly the states from the Non-Alignment Movement (NAM) as well as a number of Arab states) insisted that the issue of the crime of aggression be put on the agenda as well. Although the aggression question was not a priority at that stage, the NAM and Arab states made sure that the issue was put on the agenda for the second meeting of the Preparatory Commission.

During the first number of meetings of the Preparatory Commission, three distinct approaches to the question of a definition for aggression and conditions for the exercise of jurisdiction of the ICC emerged. The three approaches were reflected in proposals represented to a special coordinator on the issue of aggression. Proposal 1 (by the Arab and NAM states) was a compilation of proposals that were made before, during and after the Rome Diplomatic Conference of 1998. It reflected a very broad approach to the crime of aggression and included references to the UN General Assembly Definition of Aggression of 1974.

Summary

‘World history is largely a history of wars. All have been fought in a world without governance – where national “defence”, regional military alliances, balance of power and hegemonic imperialism have been the prevailing regimes. There is a manifest need for a system under universal auspices for maintaining global peace and security.’

COLLECTIVE SECURITY AS A MEANS TO PROMOTE AND SUSTAIN NTERNATIONAL PEACE AND SECURITY

The prohibition of aggression under international (criminal) law must be considered against the background of the collective security system. This system is primarily concerned with the maintenance of international peace and security. The criminalisation of aggression is analysed in terms of the international peace and security regime which developed during the twentieth century in the wake of two devastating world wars. While the focus of this book is the question of individual criminal liability as a response to (and possible deterrent for) international aggression, this must be seen contextually. Indeed, it will be shown that the criminal justice response to international aggression is ultimately not only intertwined with, but also to a considerable degree dependent upon, the key institutions of the system of collective security.

At present, the primary embodiment of the international collective security regime is the United Nations (UN). The UN Charter (1945) provides for three pillars of the system of collective security:

Summary

INTRODUCTION

In Chapter III above it was observed that to a certain extent the trials at Nuremberg and Tokyo were remarkable historical events (and, to an important extent, exercises in history writing). It was also noted that these trials represent the concretisation of the ideal to end impunity for international crimes. However, as far as individual criminal liability for aggression is concerned, the sometimes awkward jurisprudential positions concerning questions of legality (nullum crimen, nulla poena sine lege), the scope and ambit of the concept of aggression, the issue of conspiracy, and other factors impacting on the aggression debate were not definitively solved at Nuremberg and Tokyo. As William Schabas observed:

‘[It] is certainly striking to observe that the uncertainty about the role of aggression within the overall system of international criminal law is not only characteristic of the debate that immediately preceded Nuremberg, but it is also manifested in the approach to the issue in the decades that were to follow the landmark trial. The failure of the United Nations War Crimes Commission to even take a position on whether or not aggressive war should be a crime seems remarkably like the hesitations at the Rome Conference [on the International Criminal Court], more than half a century later.’

Indeed, after Nuremberg, Tokyo and the subsequent trials under Control Council Law No 10 in Germany, no serious attempts were made to prosecute individuals for the crime of aggression in the post-Second World War era. The aim of this chapter is to analyse the reasons for this state of affairs. First, the efforts of the United Nations to consolidate and preserve the legal legacy of Nuremberg will be examined. Second, this ‘Legacy of Nuremberg’ will be analysed contextually, with reference to some of the key developments in international criminal law in the post-Second World War period. Finally, some preliminary conclusions regarding the impact of the legacy of Nuremberg on the establishment of the permanent International Criminal Court will be identified.

Summary

INTRODUCTION

This chapter charts the historical development of the criminalisation of aggression as a crime under international law. It also traces the development in international criminal law towards the acceptance of individual (as opposed to state) criminal liability for aggression.

In the previous chapters it was explained how the use of force by states became outlawed. The use of force is no longer acceptable as an instrument of foreign policy. The jus ad bellum became the jus contra bellum.

The liberal ideal of collective security manifested in the twin reactions to the use of force by states: The essentially political response, where the Security Council of the UN determines when a situation is regarded as a threat to or breach of peace, or an act of aggression; and the legal response where the International Court of Justice (ICJ) has a prominent role to play to determine whether the use of force violates the relevant provisions of the UN Charter, notably the prohibition of the use of force provided for in Article 2(4). The Security Council, which is the most important body to maintain international peace and security under the UN-dominated collective security system, may also create international criminal tribunals as a response to threats to peace and security, as it did in reaction to the conflict in the Former Yugoslavia in the early 1990s and with the genocide in Rwanda in 1994. Thus it can be said that the Security Council has set precedents in terms of Chapter VII of the UN Charter whereby international peace and security can be maintained by various methods like the use of armed force (for example during the Korea conflict in the 1950s), economic sanctions (for instance against apartheid South Africa), and also the creation of international criminal tribunals to try individuals responsible for serious crimes under international law (the aforementioned creation of the ad hoc tribunals for Rwanda and the former Yugoslavia).

The shift from jus ad bellum to jus contra bellum has been an important historical development in international law. Another important development in international law has been the acceptance of individual criminal liability for certain serious crimes under international law.

Summary

THE KAMPALA REVIEW CONFERENCE

The first review Conference of the Rome Statute of the International Criminal Court took place in Kampala, Uganda, between 31 May and 11 June 2010. A number of proposals were discussed, ranging from proposals to include the crimes of terrorism and drug trafficking within the jurisdiction of the ICC, to the criminalisation of the use of nuclear weapons. The most prominent proposal – on the definition of the crime of aggression and the concomitant proposal on the conditions for the exercise of ICC jurisdiction over the crime of aggression – was eventually also one of the two successful substantive proposals. The other substantive proposal concerned the extension of the prohibition of certain types of weapons (including poisonous weapons) in the context of non-international armed conflicts as war crimes.

Observers at the Kampala Conference noted the fact that the eventual decision on the crime of aggression was made by consensus. Big powers gave serious input. Even the United States, a non-party participant but not part of the final decision, also made a serious substantive contribution. The drafting and diplomacy of the preceding decade thus culminated in an historic agreement.

THE DEFINITION OF AGGRESSION

Article 8bis, containing the definition of the crime of aggression under the Rome Statute, is the result of the work done by the Special Working Group. The main aspects of the proposals and draft texts were discussed in Chapter VI.

The unlawful behaviour is criminalised in the first part of Article 8bis. The second part of Article 8bis contains the acts of aggression that are unlawful use of force by a state in violation of international law (essentially, but with some modification, the jus contra bellum discussed in Chapter II).

THE STATE ACT OF AGGRESSION

In order to understand the scope of criminal acts that are criminalised under Article 8bis, the starting point of the analysis is the list of acts provided for in the second part of Article 8bis. The criminal scope of these acts are determined by (a) the content of the state acts as unlawful use of armed force in violation of the UN Charter, and (b) the threshold provided for in the first part of Article 8bis.

The chequered history of the criminalisation of aggression as a crime under international law has reached an important milestone with the adoption of the Kampala Resolution on the Crime of Aggression (2010). This resolution provides for the definition of the crime of aggression to be included in the Rome Statute of the International Criminal Court, as well as for conditions for the exercise of ICC jurisdiction over the crime. The second edition of this volume contains an overview and discussion of the historical and normative processes (legal and political) that culminated in the adoption of the Kampala Resolution. The different components of the resolution are critically assessed against the background of the various political and legal responses to aggression, while taking into account contemporary developments in the field of international criminal law. The volume is primarily but not exclusively concerned with the crime of aggression under the Rome Statute. It also includes a chapter on national and regional criminal justice responses to aggression, notably developments concerning the amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, which also provides for the criminalisation of aggression.About the first edition'A successful attempt to provide a working definition of the crime of aggression and the conditions for the exercise of jurisdiction by the ICC thereon. At the same time, it purports to trace the historical development of the norm of aggression and analyse the problematic issues concerning its definition. Using accessible style and language, the author correctly grasps the need for a two-sided approach to aggression, from the point of view of states, as well as of individual criminal responsibility, and touches upon the critical issue of the connection between maintenance of international peace and security and international criminal justice. [...]the book provides a thorough and concise analysis of the elements of aggression, one of the most controversial crimes in international criminal law and pinpoints its place in the complex scheme of interplay between collective security and international criminal justice. [...] the value of the present title lies in its contribution to the ongoing debate on the interrelation between state and individual responsibility for international crimes - a debate that seems far from being settled.'Irena Giorgou in 2012 JICJ 712

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Referrals by the Security Council

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INTRODUCTION: THE INTERNATIONAL CRIMINAL COURT

The aim of this chapter is twofold. First, the process that led to the adoption of the Rome Statute of the ICC is described. Particular attention is given to the (unsuccessful) process to define aggression and the difficult task to draft a suitable definition in conformity with Articles 5(2), 121 and 123 of the Rome Statute of the ICC. Second, the process to define aggression is discussed contextually with reference to the relationship between the Security Council of the UN and the ICC. This contextual background serves as an introduction to Chapter VI, where the various definitional options for the crime of aggression will be critically analysed.

In Chapter VIII a number of factors relevant to the application of international criminal law at the national and regional levels are identified. It is pointed out that these concerns pose particular problems for prosecuting individuals in national and regional courts for the crime of aggression. It is concluded that, although the notion of universal jurisdiction and the possibility of so-called ‘direct application of international criminal law’ are today important features of the developing system of international criminal law, the peculiar nature of the crime of aggression leaves little scope for the prosecution of individuals in national courts for this crime. Regional courts may be better options, but there are significant limitations as well, as is pointed out in Chapter VIII.

Aggression is arguably the international crime par excellence. It is therefore ironic that the first permanent International Criminal Court (ICC) is, more than a decade after the entry into force of the Rome Statute, still not in a position to hear cases of aggression. This may change soon after 2017, as will be explained in subsequent chapters. Indeed, the adoption at the Kampala Review Conference in 2010 of a definition of aggression as well as conditions for the exercise of ICC jurisdiction over the crime is a significant development.

The historic first permanent ICC has jurisdiction over the most serious crimes under international law – genocide, crimes against humanity, war crimes and aggression.

Summary

RESEARCH PROBLEM, RATIONALE, AND DEMARCATION

RESEARCH PROBLEM AND RATIONALE

This book critically assesses the most important components of the framework for individual criminal liability for the crime of aggression. Aggression is regarded as one of the core crimes under customary international law. The definition of aggression and the conditions for the exercise of International Criminal Court jurisdiction over the crime of aggression as adopted at the Kampala Review Conference on the Rome Statute of the International Criminal Court are yet to enter into force. National and regional legislative frameworks for the criminalisation of aggression complete the legal landscape.

It is argued that the creation of the ICC provides the international community with an historic opportunity to establish effective jurisdiction over the crime of aggression. This criminal justice response to aggression has implications for the collective security system (embodied by the UN).1 Consequently, the latter aspect forms the first substantive part of the book, where some of the implications of aggression for the collective security system are highlighted and examined.

This book provides an historical account of the development of the notion of aggression. It identifies the important debates affecting the attempts to define the crime of aggression; puts the legal debates in normative and international political context; and examines the conditions necessary for the prosecution of the crime of aggression at national, regional and international level.

Special consideration is given to the different elements of the crime of aggression as adopted at the Kampala Review Conference. The reason for this is that the ‘Kampala definition’ constitutes arguably the most realistic and legally sound basis for the eventual prosecution of the crime of aggression before the ICC. An important regional instrument on individual criminal liability for the crime of aggression – the Malabo Protocol of 2014 – provides for a definition of aggression adapted to the relevant regional collective security regime. Domestic incorporation of the crime of aggression takes on different forms. In this book special attention is given to the possibility to prosecute the crime of aggression under customary international law before domestic courts.

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Chapter 10 - Responsibility of States for Trans-boundary Damage Caused by the Prohibited Operation of Oil and Gas Pipelines

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Chapter 3 - Risks and Harm Relared to Cross-border Pipelines

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Foreword to the Second Edition

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Chapter VI - Drafting and Diplomacy: The Special Working Group on the Crime of Aggression

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Bibliography

Chapter I - Aggression in the Context of Collective Security

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Chapter IV - The ‘Legacy of Nuremberg’: Establishing Individual Criminal Liability for the Crime of Aggression

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PART III - THE CRIMINALISATION OF AGGRESSION

PART VI - ANNEXES

Chapter III - From Jus Contra Bellum to the Criminalisation of Aggression

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PART I - INTRODUCTION AND FRAMEWORK OF ANALYSIS

Case Register

Frontmatter

Chapter VII - The Crime of Aggression under the Rome Statute of the ICC

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Individual Criminal Liability for the International Crime of Aggression

Contents

Annex III - Understandings regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

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Chapter V - The Inclusion of Aggression in the Rome Statute of the International Criminal Court

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PART IV - THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION

Introduction

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Individual Criminal Liability for the International Crime of Aggression

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