chapter 7 Mobilising Law on the Side of : Security Council Reform and the of Aggression

Brian J. Foley

‘We therefore propose to that a of aggression is a crime, and that modern has abolished the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be mobilized on the side of peace.’1

1 Introduction

It is hard for me to separate Roger Clark the scholar from Roger Clark the man, which is a strong testament to his integrity. I met him first as a colleague and discovered his work afterward. I’m honoured that he’s a friend of mine. He helped me as I began doing work in international law, and he helped me grow as a scholar, teacher, and person. Clark has mobilised law on the side of peace. He challenged, head-on, the legality of nuclear .2 Recently, as part of the States Working Group on

1 Robert Jackson, ‘Report to the President on the Atrocities and War : June 7, 1945’, United States Department of State Bulletin (Government Printing Office 1945) (‘Jackson, ‘Report to the President on the Atrocities and War Crimes’’), at accessed 30 June 2014. With acknowledgment to Matthew Gillett, who used a broader swathe of this language from Jackson as an epigraph to his article, ‘The Anatomy of an International Crime: Aggression at the International Criminal Court’ (2013) 13(4) iclr 829. 2 See Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226; Roger S Clark, ‘Is The Butter Book’s Bitsy Big-Boy Boomeroo Banned? What Has International Law to Say About Weapons of Mass Destruction?’ (2013/2014) 58 nyu Sch L Rev 655 (‘Clark, ‘Is The Butter Battle Book’s Bitsy Big-Boy Boomeroo Banned?’ ’) 666 (‘That case was a frontal attack on the legitimacy of the weapons themselves, as opposed to their testing’); Roger S Clark, ‘The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons’ (1996) 7 Crim lf 265 (‘Clark, ‘The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons’ ’), 266 (Clark ‘was a member of a multinational team representing a coali- tion of three Pacific states—Marshall Islands, Samoa, and Solomon Islands—that made a joint presentation of the antinuclear side at the oral proceedings in these cases.’)

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Mobilising Law on the Side of Peace 53

Aggression (‘swga’) for the Statute of the International Criminal Court (‘icc’),3 Clark helped draft a definition of the international and the jurisdictional conditions for prosecution in the icc.4 Gaining international consensus on putting this crime on the books was an enormous accomplish- ment5: it was one thing for the II victors to define aggression as perpetrated by the vanquished and powerless Axis powers, but it was quite another thing to define it to apply generally to all nations, ‘good guys’ and ‘bad guys’ alike.6 Clark’s work against nuclear weapons and on aggression may have seemed at first like tilting-at-windmills or doomed to failure, or, perhaps worse, doomed to become a long-term effort ending in lousy compromises (and steal- ing time from scholarly work). The risk and sacrifice may be hard to see in hindsight. These are among the most important tasks of our generation, and Clark rose to the occasion. Clark and I share a strong passion for reducing, if not entirely eliminating, nations’ resort to ‘the brutalities and dreadful suffering of war’.7 This shared passion caused us to move from colleagues to brothers-in-arms, so to speak. I remember Clark gave me a copy of a short paperback in his office, Keith

3 A/CONF.183/9, 17 July 1998, and corrected by proces-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 16 January 2001 and 17 January 2001 (entry into force: 1 July 2002) (‘icc Statute’). 4 Res RC/Res. 6, adopted at the 13th plenary meeting on 11 June 2010. Clark represented Samoa. See Claus Kreß & Leonie von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 jicj 1199 (‘Kreß & von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’’) (noting that delegates from Samoa and Australia in 2009, at one point during the long process, ‘took the initiative to prepare a new draft’ of the aggression ele- ments). As a testament to Clark’s hard work and influence, Samoa was the second nation to accept and ratify the Kampala Amendments to the Crime of Aggression. So far, 14 nations have done so (30 are required). See ‘Amendments on the crime of aggression to the Rome Statute of the International Criminal Court, Kampala, 11 June 2010’ (‘Kampala Amendments’), at accessed 30 June 2014. 5 Jennifer Trahan, ‘A Meaningful Definition of the Crime of Aggression: A Response to Michael Glennon’ (2012) 33 U Pa J Int’l L 907, 912–913 (conference in Kampala ‘created a historic achievement.’). 6 Beth Van Schaak, ‘Par In Parem Imperium Non Habet: Complementarity and the Crime of Aggression’ (2012) 10(1) jicj 5 (‘Up to this point in time, the crime of aggression has been noticeably absent in the penal codes of the nations of the world. Most domestic courts lack —under any jurisdictional basis—over the crime of aggression stricto sensu, and there is little purely domestic jurisprudence involving the crime.’). 7 Clark, ‘The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons’ (n 2) 287.