The Blank-Prose Crime of Aggression

On February 13, 2009, the Special Working Group on the Crime of Aggression (SWGCA), a group set up under the treaty establishing the International Criminal Court (ICC), announced a historic breakthrough. After five years of deliberation, the panel proclaimed it had finally reached agreement on a draft definition of the crime of aggression. The treaty that set up the court, called the Rome Statute, provides for prosecution of that crime, but the framers of the Statute were unable to agree upon a definition. Prosecution of that crime was suspended until the Statute could be amended to include a definition.

The Assembly of States Parties will take up the Working Group's proposed definition at its Review Conference in May 2010 in Kampala, Uganda. I suggest in this Article that the proposed definition would constitute a crime in blank prose-one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment.