A Study On The Jurisdiction Of The Crime Of Aggression From The Perspective Of The Principle Of State Consent

Jurisdiction over the crime of aggression is a very sensitive and important issue in international law.Since ancient times,aggression has been an important way for a country to acquire territory and resources.Since an aggressive war would bring untold sufferings to people all over the world,the use of aggressive means to expand territory or plunder resources is strictly prohibited in modern international law.Aggression is an act of state,and an aggressive state should undertake corresponding state responsibilities.However,the planning,organizating,commanding and implementating of an act of aggression are usually completed by the state leaders.State leaders should undertake personal criminal responsibility for waging war of aggression especially they know that aggression is an international crime.It is an important symbol of the transition from modern international law to contemporary international law that the aggressor state should undertake responsibility and the leader of that state should be held for individual criminal responsibility for waging war after the war ended.In the process of investigating the criminal responsibility of the crime of aggression,the jurisdiction of the crime of aggression is of great important.The principle of state consent refers to the principle of international law that no international organization or state may exercise jurisdiction over a sovereign statewithout the consent of that state.The principle of state consent originates from the principle of sovereign equality of states.In 1970,the United Nations General Assembly adopted by resolution the Declaration on Principles of International Law on Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,which is a universally recognized basic principle of international law.Based on the principle of sovereign equality of states,sovereign states enjoy immunity from the jurisdiction of international organizations or other countries.The principle of sovereign equality of states is an important principle that guarantees equal international status between states and is widely respected in all aspects of international relations.Therefore,the principle of state consent applies not only to the jurisdiction of international organizations over state acts,but also to the jurisdiction of domestic courts over the acts of other states.Exercising jurisdiction over the crime of aggression requires determining the existence of an act of aggression which is equivalent to the need to govern a sovereign state.Exercising jurisdiction over a sovereign state without the consent of the sovereign state is definitely contrary to the principle of State Jurisdictional Immunity.Only with the express consent of the governed state,states with equal sovereignty could exercise jurisdiction over each other.The trials of the International Military Tribunal at Nuremberg and the International Military Tribunal For the Far East were based on the unconditional surrender of the defeated states,which recognized the judicial jurisdiction of the allied powers over the war criminals.In this regard,Japanese right-wing scholars distort historical facts and always advocate that "the International Military Tribunal For the Far East is the trial of the victors and the conduct of the defeated Japan is judged by ex post facto law...The Allies have no jurisdiction." On the other hand,for a long time,most scholars in Chinese academic circles have avoided the question of jurisdiction and ex post facto law,and have tried to explain that the Allies had jurisdiction from the aspects of justice and impartiality of the trial.Therefore,the legal basis for this jurisdiction is not well articulated.In fact,the justice and impartiality of the allied trial is the interpretation of political science,while the legal basis of jurisdiction and ex post facto law are the interpretation of international law.These must not beconfused.As of September 3,2015,on the day of the 70 th anniversary of the victory of the Chinese people's war of resistance against Japanese aggression,the newspaper office of the people's court launched a large-scale commemorative special issue "just trial",which comprehensively showed the whole picture of the trial of Japanese war criminals at home and abroad after World War II.The 70-page special issue has been hailed by experts as the first systematic,comprehensive and wide-ranging reports on the trial of Japanese war criminals both at home and abroad.The special issue invited representative academic experts.However,from the content they wrote,most scholars still followed the long-standing thinking and tried to explain that the allied countries had jurisdiction directly from the justice and impartiality of the trial.Although the title of some scholars' talk is "on Tokyo judicial jurisdiction",1 However,its content still avoids the question of jurisdiction and ex post facto law,and tries to explain the jurisdiction of the Allies directly from the justice and impartiality of the allied trial.Even the justice of the Tokyo trial and the epoch-making ex post facto law of "crimes against peace" are regarded as or equivalent to jurisdiction.State sovereignty is independent and therefore equal.The principle of sovereign equality of states is the basis for the emergence and development of international law.There is no jurisdiction between equals,which developed the principle of sovereign immunity of(foreign)states.The principle is that a state is not subject to the jurisdiction of another state without the consent of suchstate.The representatives of public power of a state,head of a state,head of government and minister of foreign affairs enjoys immunity from jurisdiction.Japan's unconditional surrender and agreement to accept the trial of war criminals by the Allies are the basis of jurisdiction.In fact,the defense lawyer for Japanese war criminals,yichiro kiyase,argued that the scope agreed by Japan was limited to the war crimes trial by the allied countries and did not include the crime of aggression,which was an application of ex post facto law in violation of procedural justice.Chinese scholars of international law have conducted in-depth studies on these fallacies,2This paper will not discuss these here.Nevertheless,for a long time,Chinese scholars who are studying the Tokyo trial have been accustomed to using political discourse to refute the legal doubts of Japanese right-wing scholars about the Tokyo trial.For this reason,the title of this doctoral thesis "research on the jurisdiction of aggression crime from the perspective of the principle of state consent" is taken as the basis,origin and development of the research on the jurisdiction of aggression crime.Theoretically speaking in international law,there are three models of jurisdiction over the crime of aggression: the establishment of a special criminal court by the United Nations Security Council,the jurisdiction of a domestic court in accordance with its own law,and the jurisdiction of an International Criminal Court created by a separate treaty.In order to maintain international peace and security,the Security Council has the right to settle international disputes by means not involving the use of force,as provided for in article 41 of the Charter of the United Nations.Broadly speaking,this authority allows the Council to establish special criminal tribunals to deal with crimes of aggression.The model of jurisdiction over the crime of aggression under the authority of the Security Council accords with the principle of state consent,which is feasible in theory and has some practical basis.The model of domestic court's jurisdiction over aggression clearly violates the principle of state consent and generally should not be recognized except for the crime of aggression committed by the national of a country under the jurisdiction of the court.In the model of the International Criminal Court's jurisdiction over the crime of aggression,there is a legal flaw of "separation of powers" between the International Criminal Court and the Security Council.Part of this model violates the principle of state consent and are opposed by all major world powers.Therefore,this model is not feasible.It is necessary and feasible to have the crime of aggression under the jurisdiction of the Security Council.The legitimacy of this model lies in the fact that the Security Council,in accordance with the UN Charter,assumes important functions and powers for the maintenance of international peace and security,and enjoys extensive rights and has long insisted on resolving state disputes through political means such as equal consultation among states.Therefore,we should follow the principle of state consent and reconstruct the mechanism of exercising the jurisdiction of the crime ofaggression.The focus of the mechanism reconstruction is to maintain the dominant position of the Security Council and fully safeguard the authority of the Security Council.The International Criminal Court can be considered as a special body of the United Nations,and however the protective jurisdiction and universal jurisdiction over the crime of aggression in accordance with the domestic law should be strictly prohibited.This thesis discusses the jurisdiction of the crime of aggression in light of the principle of state consent.Chapter one is the theoretical basis of the jurisdiction of the crime of aggression--the principle of state consent.This chapter builds up the legal foundation by explaining the main concept---the principle of state consent,by introducing its historical evolution from the precedent of "removal of gold case from Rome",and then discusses the new developments and new issues raised in the area of this concept.After the remarkable case of ‘the removal of gold from Rome',the International Court of Justice had again applied the principle of state consent in the ‘East Timor'case.Not only applied in litigation,the principle of state consent also has a significant impact on the advisory jurisdiction of the International Court of Justice.The consent of the parties to a dispute will not block the court asserting the advisory jurisdiction of the court,but will make influence of the court's discretion in deciding whether or not to give an advisory opinion.The International Court of Justice has also clearly stated that the principle of state consent is a basic principle of international law with broad scope of application.The principle of state consent can be applied in the settlement of jurisdiction over the crime of aggression.In recent years,this principle is facing new problems,such as the views of limiting the principle of state consent emerged in academic and practical communities.However,these views are mainly emerged in the field of international trade,international investment,international maritime territorial disputes,international human rights protection and other fields.And these views are still controversial in theory at present.In the context of exercising jurisdiction of the crimeof aggression,the principle of state consent should still be strictly followed.Chapter two is the historical development of the jurisdiction of the crime of aggression.This chapter starts from the historical evolution of the crime of aggression under the jurisdiction before World War II,analyzing the jurisdiction of the crime of aggression under the jurisdiction of the Nuremberg Trial and the Tokyo Trial after World War II,and clarifying the historical context of the development of the jurisdiction of the crime of aggression.Before World War I,the international community had begun to recognize the importance of limiting acts of aggression.After World War I,there is an attempt to investigate the responsibility for war of aggression launched by the German emperor was the beginning of the investigation of individual international criminal responsibility in international law.The practice of the Nuremberg and Tokyo trials after World War II was a full implementation of the principle of state consent.This chapter especially criticizes the wrong views of a few Japanese right-wing scholars,such as denying that the Tokyo Trial was approved by the Japanese government and denying the legitimacy of the Tokyo Trial jurisdiction.Since the Tokyo Trial,a few Japanese right-wing scholars have glorified the war of aggression,discredited and denied the Tokyo Trial,in an attempt to revive fascism in Japan.Disregarding the history,they openly denied the legitimacy of the jurisdiction of the International Military Tribunal For the Far East.In fact,the International Military Tribunal For the Far East has jurisdiction under the Potsdam Declaration,the Japanese instrument of surrender.And the order of the supreme allied commander Mac Arthur,and its jurisdiction are expressly agreed by the Japanese government.In the later San Francisco Peace Treaty,the Japanese parliament reaffirmed the legality of all the decisions of the International Military Tribunal For the Far East.The jurisdiction of the International Military Tribunal For the Far East is reasonable and lawful,which is fully in line with the principle of state consent,and leaves no room for Japanese right-wing scholars to tamper with history or willfully discredit it.Chapter three is about the principle of state consent and the jurisdiction of thedomestic court for the crime of aggression.This chapter analyzes the basis of the domestic court's jurisdiction over the crime of aggression,and points out that the domestic court's protective jurisdiction and universal jurisdiction over the crime of aggression not only violate the principle of consent of the state but also violate the sovereignty of other countries.This chapter uses the empirical research method to analyze and prove that the trials of Japanese war criminals by Chinese military courts after World War II followed the principle of state consent,while at present more than ten countries set up the crime of aggression in their domestic legislation,and their jurisdiction includes protective jurisdiction and universal jurisdiction,which seriously violates the principle of state consent.This chapter also points out that there are serious legal defects in the application of protective jurisdiction and universal jurisdiction by domestic courts to the crime of aggression against nationals of other countries.There are many problems in domestic court's jurisdiction of aggression crime.First,the court of a country has jurisdiction over the crime of aggression committed by its nationals,which does not violate the principle of consent of the state.However,the result of such action is equivalent to the fact that aggressor state acknowledges that its previous acts constitute aggression.In addition to the crime of aggression committed by the defendants,it may also lead to the responsibility of the aggressive state.Second,it is very rare that a court of one country has jurisdiction over the crime of aggression committed by nationals of other countries based on territorial jurisdiction.There should be at least one connection point and the consent of the aggressor country must be obtained.Third,based on the protective jurisdiction or universal jurisdiction in the domestic law,the domestic courts have jurisdiction over the crime of aggression of nationals of other countries.Although many countries have introduced such legislation,so far there is still no judicial cases in practice.Chapter four is about the principle of state consent and the jurisdiction of the International Criminal Court for the crime of aggression.This chapter mainly adopts the research method of normative analysis to analyze the improbability of jurisdictionmechanism of the crime of aggression after the amendment of the Rome Statute.After the amendment of the Rome Statute in 2010,some provisions in the statute violate the principle of consent of states,and constitute the so-called "separation of powers" between the international criminal court and the Security Council in the determination of state aggression.In fact,it damaged the Yalta System dominated by the Security Council in international disputes through the political settlement.At present,the jurisdiction of the International Criminal Court for the crime of aggression has been activated.In recent years,some countries are actively revising their domestic legislation to establish protective jurisdiction or even universal jurisdiction for the crime of aggression under the pretext of "fulfilling the obligations of the Rome Statute".The Rome Statute established a very complicated jurisdiction mechanism for the International Criminal Court to deal with the crime of aggression.According to the different ways of initiation,different jurisdiction procedures are stipulated for states parties and non-states parties.This two different jurisdictional filtering mechanisms require the determination of an act of aggression by the Security Council and require the prosecutor to obtain authorization from the pretrial department to initiate investigations if the Security Council fails to make a determination within six months.The jurisdiction procedure of the International Criminal Court is relatively simple in the manner that the Scurity Council initiated the referral of aggressive situations.The Rome statute gives the council the right to refer situations and to suspend investigations and prosecutions.In accordance with the provisions of the Rome Statute,it may be necessary in some cases for the International Criminal Court to establish the existence of an act of aggression by a state,thus giving rise to a situation in which the International Criminal Court exercises jurisdiction over the acts of a state without the consent of a sovereign state.The above-mentioned provisions of the Rome Statute violate the principle of state consent and have serious legal defects.According to Article 39 of the Charter of the United Nations,it is the right of the Security Council to determine acts of aggression by states.The UN Charter stipulatesthat the UN Security Council's "right to determine acts of aggression" is exclusive and does not allow the International Criminal Court to "decentralize" its powers.The amendment to the crime of aggression of the Rome Statute stipulates that the International Criminal Court can determine the acts of aggression of states,which will inevitably undermine the stability of the Yalta System of the Security Council for the political settlement of state disputes,thus causing more international conflicts and disputes.Chapter five discusses the necessity and possibility of exercising the jurisdiction of the crime of aggression under the leadership of the Security Council.Based on the analysis of the UN Charter,this chapter further clarifies the exclusiveness of the right of the Security Council to determine acts of state aggression.This exclusiveness is an implicit provision of article 39 of the UN Charter and it is the basis of the treaty law of the Security Council leading the exercise of jurisdiction over the crime of aggression.This chapter also analyzes the necessity and possibility for the Security Council to exercise its jurisdiction over the crime of aggression.The right of the Security Council to determine acts of aggression is an exclusive right.The central role of the council in promoting international peace and security should be maintained by upholding this right of the council.The Yalta System dominated by the Security Council is an effective and balanced system of international relations established after World War II.The council acts on behalf of the member states and it is in line with the principle of state consent to have the crime of aggression under the council's jurisdiction.The council has the authority,if necessary,to establish a special international criminal tribunal to deal with crimes of aggression.The council also has the power to refer situations of aggression to international organizations,such as the International Criminal Court,which have jurisdiction over the crime of aggression and the settlement of disputes between states.Chapter six is the mechanism-innovation of the Security Council leading the exercise of the jurisdiction of the crime of aggression.The discussion of this chapterconsists of three aspects: maintaining the authority of the Security Council,reconstructing the jurisdiction mechanism of the crime of aggression,and countermeasures of China.This chapter takes international conventions such as the UN Charter as the basis of treaty law and the principle of state consent as its premise,summarizes three basic viewpoints and proposes three institutional innovations.Leading by the Security Council,excluding the protective jurisdiction and universal jurisdiction of domestic courts,and exercising jurisdiction of the International Criminal Court as a specialized agency of the United Nations are the core elements of the innovation of the three mechanisms.The basic points of this chapter are as follows: first,it seems very clear that the UN Security Council has the exclusive right to determine whether a country commits "acts of aggression".Second,without the consent of a sovereign state,the domestic courts of another state may not impose jurisdiction over the crime of aggression against that state.Thirdly,it can be considered that under the leadership of the Security Council,the International Criminal Court,which is treated as a specialized agency of the United Nations should have jurisdiction over the crime of aggression,and the International Criminal Court should have the necessary judicial independence.Proceeding from the principle of consent of states,these three basic viewpoints resolve the issue that the authority of the Security Council should be maintained in the exercise of jurisdiction over the crime of aggression.Furthermore,on the issue of jurisdiction over the crime of aggression,the relationships between the Security Council,the International Criminal Court and the domestic courts of various countries are clarified and their rights boundaries are clarified.This dissertation proposes three major mechanism innovations.First,on the basis of the Security Council's dominant jurisdiction over the crime of aggression,the International Criminal Court as a specialized agency of the United Nations should exercise jurisdiction under the leadership of the Security Council.Second,because the domestic courts in accordance with the domestic law exercise jurisdiction of the crime of aggression of nationals of other countries will seriously violate the principle ofstate consent,so it should be prohibited to stipulate the protective jurisdiction and universal jurisdiction of the crime of aggression in the domestic legislation.If a state were to impose such domestic legislation,it should not be recognized,at the level of international law and should be restrained by measures taken by the Security Council.Third,the International Criminal Court can act as a specialized agency of the United Nations,exercising jurisdiction over the crime of aggression.In addition,this dissertation also suggests amending article 39 of the UN Charter at the level of international treaty law to make it clearer that the Security Council has the exclusive right to determine state aggression.It is also proposes to amend the Rome Statute and other relevant international treaties to facilitate the implementation of the three mechanisms proposed in this study.