|Illegal Armed Force|
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Aggression and illegal armed force from post WWI until today |*|
"Let us recall that after some fifty million men, women and children were killed in World War II, political leaders of the victorious powers held forth the promise that a new structure of international society would be created to preserve the peace. Those who had launched the war and directed the mass murder of millions of innocent civilians were warned that they would be held to account for the purposes of justice and legal precedent alike. The framework of international society's new structure would be the United Nations, built from the rubble of its failed predecessor, the League of Nations, another edifice framed in the aftermath of a catastrophic war.
The Preamble of the United Nations Charter, signed on June 26th, 1945, begins by expressing the determination "to save succeeding generations from the scourge of war." Paragraph 1 of Article 1 of the Charter declares the UN's purpose to include the exercise of "collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." Responsibility for preserving the peace is entrusted to the Security Council, composed of fifteen members including five permanent members drawn from the victorious Allied Powers. Chapter VII of the Charter empowers the Council with the discretion to determine whether an act of aggression by a state has occurred and to take whatever measures necessary to restore international peace and security. The Charter, however, fails to specify which acts constitute the illegal aggression that triggers a collective defense.
In addition to that framework, the matter of dispensing justice after the vast breach of the peace and establishing precedents for the prevention and punishment of future aggressors still remained for international society's new structure. On August 8th, 1945, the four Allied Powers occupying Germany signed the London Agreement in order to create an International Military Tribunal ("IMT") to try German leaders deemed responsible for the war and its atrocities. The trial was to take place at Nuremberg. The IMT's jurisdiction was limited to Crimes Against Peace, War Crimes, and Crimes Against Humanity. Crimes Against Peace were defined as "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." After a fair trial that was open to the public, and a thorough analysis of the arguments made by the defendants' chosen lawyers, the eminent IMT judges concluded that those who had planned and directed attacks against their peaceful neighbors must have known that they were violating existing international law.
The genesis of modern international criminal law occurred in the interim between the two wars. At the conclusion of the Great War, the Allied Powers convened a special commission of international law experts to address criminal responsibility. Robert Lansing, the U.S. Secretary of State, chaired the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, which issued a Report naming over 850 suspected war criminals and enumerating 32 activities constituting war crimes. Leading up to the Treaty of Versailles, the report asserted that "all persons belonging to enemy countries ... who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution."
The Treaty of Versailles, 1919, served two basic purposes. It included the Covenant of the League of Nations, the institution designed to establish a pacific world order, and it established the terms of the peace as dictated by the victorious Allies. The long term prospects of the League were not helped by the U.S. Senate's failure to ratify the Treaty and unwillingness to ever join. The Treaty also formed an untenable peace.
In addition to its Report, Lansing's Commission also drafted the "Penalties" section of the Treaty, which included Kaiser Wilhelm II's public arraignment for "a supreme offence against international morality and the sanctity of treaties." In the event, the Kaiser avoided a trial by fleeing to Holland, where the Dutch state refused requests for his extradition. Although the Treaty of Versailles also called for military tribunals administered by the Allied Powers, German war prisoners were ultimately returned, ostensibly to face a special court established in 1921 in Leipzig. The Criminal Senate of the Imperial Court of Justice held just twelve trials, none of which concerned significant figures. The process was highly unpopular in Germany and clearly did not foster any sort of national contrition. In spite of its practical inconsequence for prosecutions, the Treaty of Versaille's precedents for criminal responsibility comprised a step toward the prohibition of force.
In the aftermath of Versailles, France initiated bilateral negotiations with the United States to rehabilitate relations between the former allies eroded in large part because of the United States' unwillingness to forgive France's war debt, which, itself, was linked to German reparations due to the Treaty. These negotiations resulted in a turning point for the proscription of armed force. The multilateral Kellogg-Briand Pact of 1928, signed outside the League of Nations framework by Germany, France, the U.S. and over sixty other countries, outlawed the use of force for the settlement of international disputes. While signatories failed to adhere to its terms, the Kellogg-Briand Pact is nonetheless a critical precedent for international criminal law.
The Pact and the Treaty of Versailles were cited along with many other treaties by the Nuremberg Tribunal and prosecutors to justify the aggression charge as being consistent with existing international law as well as the principles of fair trial. In his June 6, 1945 report to President Truman, Justice Robert Jackson, on leave from the United States Supreme Court in order to act as Chief Counsel for the United States, decried "the sterile legalisms developed in the age of imperialism to make wars respectable." Augmenting the gravity of the available legal precedents, he called for common sense and a firmer enforcement of the laws of international conduct, "so as to make war less attractive to those who have governments and the destinies of people in their power." The IMT judges recognized that the law is not static but must change to meet the needs of a changing world. Aggressive war, that had previously been a national right, was legally condemned as an international crime. International law had taken a significant step forward.
In December 1946, the first General Assembly of the United Nations unanimously affirmed the validity of the IMT trial and judgments, which were followed by subsequent Nuremberg proceedings and war crimes trials in Tokyo. In 1947, the Assembly appointed committees to draft a Code of Offences against the Peace and Security of Mankind - a code expressly to be based on the Nuremberg principles - and prepare for the establishment of a permanent International Criminal Jurisdiction to try those who violated the anticipated new criminal code. Idealistic UN aspirations in support of the rule of law soon confronted political reality. Nations and groups with different national, political, religious and ethical backgrounds had different perceptions of what was right and just. Additionally, as the price for joining the collective UN effort, the permanent members on the Security Council had reserved to themselves an unfair veto power: Any one of the five could block any enforcement action.
The argument was heard that there was no need for an International Criminal Court unless there was an agreed Code of Crimes for the Court to enforce. There could be no Code without including the crime of aggressive war that the Nuremberg Judgment had labeled as "the supreme international crime." It was said that until aggression was more specifically defined, it could not be included in a precise criminal statute. Indeed, the General Assembly determined that a formulation of a criminal statute itself must be suspended until a definition was reached. Defining aggression was the key effort needed to unlock action on the Code and the Criminal Court, the doors of the gateway to the order conceived at Nuremberg. This definition project survived the years immediately following the Nuremberg Tribunal in spite of pronounced difficulties.
In addition to directing the International Law Commission in 1950 to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal," the General Assembly also appointed successive Special Committees in 1952 (composed of 15 members) and 1954 (with 19 members), to cope with the same problem. Surely, so many lawyers working for so many years would have been able to agree upon an acceptable definition if the powerful states had been ready to restrain their aggressive behaviors. In truth, powerful states were simply not ready or willing to entrust their national security or vital interests to the judgment of any impartial international body."
"Through the decade after the Charter of the Nuremberg Tribunal, the crime of aggression remained undefined and illegal wars continued to be waged with impunity in many parts of the world. [...]
In the face of the ideological differences among major powers and their allies, the UN delegates were stymied. Little progress was visible in defining aggression or preparing either Code or Court. While revolving committees dithered, outstanding legal scholars filled the breach, seeking to clarify the necessary components of an acceptable system to restrict the use of force in international affairs. Professors McDougal and Feliciano of Yale University Law School, for instance, produced a remarkable book in 1961. Law and Minimum World Public Order: The Legal Regulation of International Coercion contained a profound and exhaustive analysis which recognized that a humane world order could not be achieved without bringing national violence and coercion under effective international controls. To achieve those goals it was necessary to invent and put in place new structures of authority which leaders and peoples could be persuaded to accept. [...]
[U]ntil there was an agreed definition of aggression, however, there was no hope that delegates would move forward toward creating any International Criminal Court.
On December 14, 1974, in the midst of Soviet-American detente, the General Assembly adopted Resolution 3314, a consensus definition of aggression painstakingly reached by UN Special Committees after almost 30 years of effort. The 138 Member States were by no means agreed on the interpretation of every clause in this definition. Notably, the resolution was not put to a vote. The consensus was the product of compromise achieved by including phrases of such dexterous ambiguity that adversaries could interpret them to suit their own political agendas. The eight articles of the definition began with a general clause based on UN Charter language prohibiting the use of armed force. That was followed by specific illustrations of outlawed behavior, such as invasion or attack. Exculpating clauses were added to placate states that were primarily concerned with protecting the right to self-determination or freedom from alien domination. Adding the vague phrase "in accordance with the principles of the Charter" made the enabling clauses tolerable. The clear articulation that the Security Council had the final word in what would be held to be aggression made the compromise wording acceptable to the permanent members, who wielded veto power.
Nations seemed to have forgotten, or had wished to forget, that the definition was originally intended to form a vital part of a new international criminal code and judicial system... [P]owerful sovereign states were not willing to yield their prerogatives to use military might when, in their sole judgment, it was necessary to defend or advance their national interests. Robert Rosenstock, the adroit United States delegate who promoted the adoption of the consensus definition, argued nonetheless that it only provided a guide for the Security Council and had no binding legal significance. No doubt, the compromise definition of aggression was actually more sieve than substance. It reflected the fears and hesitations that still prevailed in the world. But its very existence, however feeble, and the prolonged debates in its genesis showed an increasing awareness that human survival might depend upon man's capacity to limit the unbridled use of international force. The 1974 consensus definition finally set the keystone -- albeit a porous one -- for a construction of the missing Code of Crimes and the International Criminal Court. [...]
An International Criminal Court was approved, by the overwhelming vote of one-hundred twenty in favor and seven against, in a frenetic five-week conference in Rome in 1998. The Rome Statute entered into force on July 1, 2002 as a result of the deposit of the sixtieth instrument of ratification on April 11, 2002... [The Court's] jurisdiction is strictly limited, subordinated to national criminal jurisdictions. Only crimes of a magnitude to concern the international community as a whole can come within its reach. The new criminal tribunal can deal only with charges of Genocide, Crimes Against Humanity and major War Crimes -- all of which were carefully defined. The problem of defining aggression remained unresolved. [...]
[A]ggression, the most divisive issue for the Rome Conference Delegates, was sidestepped in a last minute maneuver. The Statute's enumeration of crimes postpone[d] the matter of defining aggression well into the future. Article 5 of the Statute provides that the Court has jurisdiction with respect to four crimes: "(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression." While Articles 6, 7, and 8 proceed[ed] to define the first three crimes listed in Article 5, the second paragraph of Article 5 renders dormant the Court's jurisdiction over the last crime:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
Article 123 provides that seven years after the entry into force of the Statute, the UN Secretary-General shall convene a Review Conference to consider amendments. Article 121 requires a two-thirds majority of States Parties for the adoption of an amendment at a Review Conference or at any meeting of the Assembly of States Parties after that seven year period. [...]
As a statutory matter, the need to expressly define the crime for the Court is clear; as a jurisprudential matter, there is no real need for a new definition of aggression. The definition of the Nuremberg Charter proved adequate for the Nuremberg Tribunal. It was also affirmed by the General Assembly, as well as, after years of study, by the expert International Law Commission... The insistence upon another definition is not motivated by respect for the rule of law but, ..., by the aim of powerful states to evade it." |1|
"Major powers were still opposed, as they had always been, to having any foreign court adjudicate the legality of their military actions. They balked at allowing the ICC to try aggressors. Small states insisted that without being able to punish aggression - "the mother of all crimes" - the ICC would be a farce. [...] What was demanded was an acceptable new definition of aggression and assurances that Security Council powers would not be diminished. No one seemed to notice, or wanted to notice, that in 1974, after years of negotiation, a consensus definition of aggression had already been reached and accepted by the UN General Assembly (GA Res. 3314). In any event, the impasse in Rome regarding the crime of aggression was bridged by postponing further consideration pending a Review Conference intended to be convened seven years later.
In June 2010, the promised Review Conference was finally held in Kampala, Uganda. The participants seemed to acknowledge at the outset that decisions would be reached only by consensus. "Consensus", of course, meant that everyone had a veto right about everything. Under such restraints it would be exceedingly difficult to reach clear meetings of the mind on any important matters of substance. Nevertheless, a revised consensus definition of aggression was finally reached that was largely based on the 1974 consensus. Its most significant change was that the aggression had to be a "manifest" violation of the UN Charter. What actually was meant by "manifest" remained uncertain. Still, no longer could the convenient but spurious argument be made that aggression could not be prosecuted because it had not been defined.
Yet, once again, as had been done in Rome, under pressure from powerful states, giving the ICC active jurisdiction over the crime of aggression was not accepted. As a compromise, it was agreed to postpone the issue for reconsideration at some unspecified future date after 2017. It was an echo of the lame historical excuse: "the time is not yet ripe." Thus, malevolent leaders responsible for what the IMT called "the supreme international crime" still remained beyond the ICC's reach. If illegal war-makers were to be deterred by the threat of punishment by a court applying "enlightened and enforceable principles", new ways had to be found to end the existing immunities."
"Enlightenment" begins with the recognition of the need for change. One of the primary objections to accepting new international rules to govern national conduct was the misguided complaint: "Our sovereignty is at stake!" For thousands of years, war was the accepted path to conquests, riches and glory. Centuries ago, Thucydides articulated the oft-quoted observation: "We know as practical men that the question of justice arises only between those equal in strength, and that the strong do what they can , and even the weak submit." Power was decisive. International law did not exist.
The treaties of Westphalia in 1648 ended 30 years of religious conflict in Europe by creating a regional system of sovereign States in which a monarch reigned supreme only within his realm. Conquest by combat remained legitimate. This condition persisted even up to the formation of the League of Nations, which recognized war-making as lawful - as long as the enemy was given three months' notice.
The Nuremberg principles sought to substitute a rule of enforceable humanitarian law to replace the horrors of armed conflict. Those who stubbornly refused to be bound by new international rules failed to recognize that, in today's interdependent and increasingly democratic world, sovereignty belongs not to a monarch who is above the law but to the people. The notion of absolute sovereignty is absolutely obsolete.
Enlightened military leaders who experienced armed combat learned the hard way that law is always better that war. When Dwight D. Eisenhower, who had been Supreme Commander of the victorious allied forces in World War II, became President of the United States, he made an important speech in which he said: "In a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law." He was echoing General Douglas MacArthur, Commander in the Far East, who, in 1946 praised the new constitution of Japan, in which the Japanese people forever renounced war as a sovereign right. MacArthur, a great war hero, called for universal renunciation of armed might. He pointed to modern science and warned that failure to unshackle ourselves from the past "may blast mankind to perdition." Recently retired Chairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, has repeatedly declared that he would rather prevent or deter a war than fight one. It should be noted that prohibiting the illegal use of armed force is designed to protect military as well as civilian victims.
Many of our most far-sighted international legal scholars, such as revered Professors Hersch Lauterpacht, Myres McDougal and his protege, Michael Reisman recognized that the human rights of the individual can best be protected by an expansive and not restrictive characterization of prohibited behavior and that we should look to the future, and not to the past, in developing norms of acceptable conduct. With respect to crimes against humanity, the highly esteemed Prof. Cherif Bassiouni has observed that "the purpose of the prohibition is to protect against victimization irrespective of any legal characterization or the context in which it occurs." In his recent book "Unimaginable Atrocities", Prof. William Schabas recognized that taking the Nuremberg principles forward is "the mission of international justice, as well as international human rights, as a civilizer not only of individuals but also of nations."
Countless non-governmental organizations and official UN agencies have recognized the need for improved protection of humanity through law. In the absence of competent courts and political will by world leaders, the right to peace proclaimed in a wide variety of resolutions remained little more than an articulated but unenforceable aspiration. Declaring the law is one thing; respecting or enforcing it is another. The evolution of international law had not yet reached the point where institutions or means were available for effective peaceful enforcement of the rule of rule of law. The existence of the ICC, with its legally binding statute that required all parties to the treaty to honor their obligations, held forth the implied promise that the future would be better than the past. Hope, however, does not become reality without sustained efforts to persuade the sceptics.
As a first step, all States Parties to the Rome Statute who were present in Kampala should now ratify the amendments on aggression, including the negotiated understandings agreed to by consensus in 2010. Failure to provide the necessary 30 ratifications would undermine the utility and integrity of the entire Kampala effort. Those States Parties that accepted and ratified the Rome Statute are already legally bound by that treaty to assume primary responsibility for supporting the ICC goals and mandates. If they fail to ratify their own Kampala consensus, they foul their own nest.
Professor Otto Triffterer of the University of Salzburg, one of the earliest champions of an international criminal court, in his latest comprehensive commentary drew attention to the Rome Statute's preambular mandate stressing "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." The statute's preamble similarly speaks of punishment "at the national level and by enhancing international cooperation" and emphasizes that the ICC is "complementary to national criminal jurisdictions." This principle of "complementarity" meant that it was only when domestic courts were unwilling or unable to provide a fair trial that ICC intervention was appropriate. Of course, it made good sense to rely first on local courts where victims could see that justice was being done, evidence was more readily attainable, and costs would be limited. To be sure, the Security Council, as provided in the Charter and the Rome Statute, can always intervene in the interest of world peace.
It is particularly notable that States can trump and bypass ICC powers by enacting their own local laws authorizing their own courts to try any of the ICC crimes. Leaders who violate international criminal should have to answer to their own courts and their own citizens. If that is not possible or feasible, those responsible for massive killings should not expect the world to turn a blind eye to their crimes, but should expect that in the final analysis justice will be done by the ICC."
"Addressing the Assembly of State Parties on 12 Dec. 2011, the highly respected United Nations High Commissioner for Human Rights, Navi Pillay, called on nations to fulfil their obligations by enacting comprehensive legislation incorporating the Rome Statute into their domestic criminal codes. She called upon the Assembly to work "toward ending impunity for gross human rights violations that amount to the worst crimes." She was right to note that the primary objective "is not to bring as many perpetrators as possible before the ICC, but to get states to diligently implement their obligation to prosecute international crimes." In reviewing the work of the ICC on its tenth anniversary, the President of the Court, Judge Sang-Hyun Song, correctly observed that "the most important aspect of the fight against impunity takes place in each country, society and community around the globe. Domestic justice systems must be strong enough to be able to act as the primary deterrent worldwide..."
The Human Rights Council Advisory Committee on the right of peoples to peace has recently similarly emphasized that there is a universal right for all peoples to be free from the use of force in international affairs, and that states should do their part in advancing such rights. The net by which perpetrators of international crimes may be apprehended and brought to justice is still under construction. Yet, if enough states carry out their acknowledged primary responsibility to enforce the rule of law, those leaders responsible for massive human rights violations will eventually be left with no place to hide.
What is needed now is new national criminal legislation to put perpetrators of human rights violations on notice that their evil deeds will no longer be tolerated. As far as punishing the crime of aggression is concerned, the lock will unfortunately remain on the closed ICC door until some unpredictable date after 2017 - at the earliest. Still, it may be possible for the essence of the egregious offence to make its way into national criminal jurisdictions of peace-loving nations. It should be noted that national laws to protect the right to life and other peaceful humanitarian goals do not require Security Council approval.
It is, of course, inevitable that on such difficult problems as war and peace there will be differences of opinion. Those powerful states that prefer to rely on their own unrestrained military might remain free to go their own ways. As long as such differences are dealt with by peaceful means they deserve respect. But the use of armed force, particularly against innocent civilians, should not be tolerated. If the Security Council fails in its duty to maintain peace, other lawful means must be found to protect innocent victims and end the outrage that leaders responsible for the most atrocious crime of illegal war-making remain immune. Recent experience has shown that when illegal violence becomes unbearable, tyrants may be toppled by the awakened und unrestrained outrage in the court of public opinion; surely, a peaceful legal resolution of such conflicts would be more humane and in everyone's interest.
Although uniformity is desirable, different countries have differing legal systems, and different terminology may be needed to enable national codes to curtail the illegal use of force. If the term "aggression" seems too politically sensitive, States should consider criminalizing the offense under a more general description. "The illegal use of force" should be recognized and condemned as a "crime against humanity". Of course it would have to be more explicitly defined and explained, but it might induce militant extremist groups or states to pause or desist from causing great suffering to large numbers of blameless victims.
Even powerful countries may come to see the value of restraining their own military might. The post-war constitutions of Japan and Germany, for example, contain provisions recognizing that aggression is a crime and curtailing their own right to use armed force except in self-defense. Many other states condemn various human rights violations such as genocide, apartheid, torture and other crimes against humanity as punishable in their national courts because they are recognized as customary international law that should bind all countries. Other states do not recognize customary international law unless specifically adopted in their own legislation. The humanization of man's most inhumane activity must be an ongoing process in the interest of our common humanity.
To be sure, many smaller states may need help in adapting their local laws to meet contemporary needs or threats. The ICC should, as a form of "positive complementarity," assist States to close the impunity gap that now exists for crimes that were universally outlawed at Nuremberg. They should let it be known that if nations fail in their duty to protect their own citizens from slaughter, the responsible leaders may be brought to The Hague to face trial for their inhumane acts. Similarly, NGO's and other supporting institutions can play a valuable role with respect to informing and galvanizing support from the general public and sympathetic legislators. The goal should be to include in national criminal codes all of the crimes that were punishable in Nuremberg and are listed as crimes by the ICC and other new international courts. Humanitarian law enforcement begins at home. [...]
The Rome Statute that binds the ICC spells out the parameters of all of the crimes within its own current jurisdiction. Enumeration of certain actions as "crimes against humanity" in the ICC statute and similar codes was never intended to be exhaustive or exclusive. Crimes which were separately categorized as "genocide" and "aggression" were being dealt with by special UN committees, but such separate crimes could very well have fit within the broader categorization of "crimes against humanity". The ICC statute includes, by way of example, acts which qualify as crimes against humanity: murder, enslavement, apartheid, rape, torture, and half a dozen similar outrages. The final enumeration of offending types of conduct also condemned a catch-all category: "other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health." This provision is consistent with the IMT language and with the statutes and jurisprudence of the ad hoc tribunals which have been set up by the Security Council.
The precise character of "other inhumane acts" as crimes against humanity was left to interpretation by courts and judges. The door was deliberately left open to possible inclusion of other unforeseeable major inhumanities that might otherwise have escaped judicial scrutiny. Nuremberg correctly condemned aggression as "the supreme international crime" because it included all the other crimes. Even if the appellation "aggression" is not used, the consequences of the illegal use of armed force may be equally reprehensible and should not be allowed to escape criminalization because of nomenclature.
It may be useful, therefore, to consider a draft of a model code or template to help define the conditions under which an illegal use of force may come within the purview of Crimes Against Humanity, possibly as a category of crime included within "other inhumane acts." In essence, what is required is national legislation along the following lines:
"Any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians, is subject to punishment for crimes against humanity."
Limiting the crime to persons responsible implies a leadership position. What is illegal is made plain by the UN Charter itself: there is an inherent right to individual or collective self-defense against an armed attack (Art.51), and, of course, the Security Council can authorize any measures to maintain peace (Art. 42). If those conditions do not exist, the use of armed force is illegal.
It should be noted that those who undertake legally authorized armed force fall into a different category altogether. The legitimate use of armed might is permissible so long as such force is applied in a manner proportional to the harm sought to be redressed and consistent with established rules of armed conflict. It is the illegality of the use of force that gives rise to a crime against humanity because it shocks the human conscience by violating fundamental norms of permissible human behavior.
Of course, all of the safeguards of due process and fair trial must apply to both national and international courts. The ICC, for example, can only consider "crimes of concern to the international community as a whole." It must be shown that the crime against humanity was part of a widespread or systematic attack against any civilian population, with knowledge of the attack. The Prosecutor must prove that the accused meant to cause the consequences "or is aware that it will occur in the ordinary course of events." (Art.30). The judges and the Prosecutor must take into account the gravity of the crime and whether the prosecution would serve the interests of justice. (Art.53). The law must be strictly construed and not extended by analogy. It will be up to the judges rather than the protagonists to decide whether the specific deeds are "other inhumane acts" as contemplated by the law.
With such a wide array of safeguards, leaders who do not plan to use armed force illegally need not fear their national courts or the ICC. They should welcome this extension of international law as a protective shield for themselves and their citizens. True, national courts are not likely to bring charges against their own tyrannical leaders. But changes in regime are not uncommon and an independent and transparent judiciary may offer justice instead of vengeance.
The international community, frustrated by political inability to use authorized armed force, has heralded a new justification under the guise of a 'responsibility to protect." But one should never forget that lawful goals should not be pursued by unlawful means. Humanitarian intervention must not be a cloak for concealed political objectives. The use of armed might can only be legitimate under circumstances permitted by the U.N. Charter. The determination of whether armed force is lawful or criminal cannot be left to the self-serving and biased protagonists or their allies. ICC prosecutors and judges are required by law to take account of all relevant circumstances, including mitigating factors, in order to serve the interests of justice. A fair and transparent judicial decision by judges of mixed gender and varied nationalities, applying humanitarian rules of law remains the safest path to peace.
ICC rules of procedure and decisions by the specialized tribunals created by the Security Council to penalize the horrors committed in this century are creating valuable jurisprudence by which th legality of human inhumanity can be judged. If even one murder can qualify as a crime against humanity, surely maiming and killing thousands of innocents should also be recognized as a punishable crime by competent national, regional or international tribunals.
No one can expect all crimes to be eliminated simply by making them punishable locally or internationally. As wisely stated by Professor Theodor Meron, an internationally esteemed legal scholar and currently the president of the International Criminal Tribunal for the Former Yugoslavia, "To genuinely humanize humanitarian law, it would be necessary to put and end to all kinds of armed conflict." Of course, he's right. Furthermore, a vast matrix of social improvements is also required. The threat of punishment, however, certainly has some deterrent effect. A guarantee that the offender cannot or will not be tried can only encourage more criminality. If the illegal use of armed might can be deterred, even to a slight extent, the effort to save human lives and treasure is surely worthwhile."
"Internal and external wars that brutalize human beings continue to deface the human landscape. New technologies enhance man's capacity to kill his fellow humans. The threat to humanity posed by the illegal use of armed force by nations and militant groups increases daily. Having invented the means for destruction of all life, it is difficult to believe that we lack the intelligence and capacity to prevent it from happening. Of course, there are those who still believe, as Thucydides did, that wars are inevitable and people will act only to protect their own interests. Yet, in today's inter-dependent and potentially life-ending world, is it not in the interest of all nations to do what they can do to deter war? The notion that war is an immutable manifestation of some Divine providence simply cannot stand the light of intelligent, informed analysis. War is never Divine; in fact, war is hell. The willingness among some to accept violence as the final arbiter of disputes has given us the world of terror, genocide, mass killings of children, and similar atrocities that raise doubts about whether humans are really human.
In his farewell address in 1961, U.S. President Eisenhower warned about the power of a self-serving military-industrial complex that could only be controlled by "an alert and knowledgeable citizenry." An ideology cannot be killed by a gun. It requires a more acceptable ideology. The logic of armed might breeds crime. Every war makes murderers out of otherwise decent men. Whether they are nations or armed bands, militants must learn to resolve their differences without having to kill their adversaries and their neighbors. The rule of law, nationally and internationally, points the way toward a more humane world. Failure to enforce the law undermines law itself.
Skepticism is understandable but, if change is desired, inaction is intolerable. When the Statute for the International Criminal Court emerged from the negotiations at Rome, U.N. Secretary General, Kofi Annan, called it "The hope of future generations." Legislators, diplomats, students, teachers, religious leaders, non-governmental organizations and every segment of society must be alerted to the vital importance of developing national and international criminal law to help protect the basic human rights of people everywhere. There is nothing more important than the right to life. Putting Nuremberg defendants on trial, as Justice Jackson noted in his brilliant opening statement in 1945, was "one of the most significant tributes that Power has ever paid to Reason." Failure to recognize that illegal war-making is a punishable crime against humanity repudiates Nuremberg and would be a tragic triumph of Power over Reason. "Law, not war" remains my slogan and my hope." |2|
Charleroi, Belgium, July 17th, 2013.
1. Benjamin B. Ferencz, preface to Aggression and World Order: A critique of United Nations Theories of Aggression, by Julius Stone (Clark, New Jersey: The Lawbook Exchange Ltd., 2006), iii-xix. [Back]
2. Benjamin B. Ferencz, Illegal Armed Force as a Crime Against Humanity, 2012, pp. 6-24 [Back]
|*| Documentation note:
In order to trace the legal and political activity regarding the prohibition of the illegal use of armed force, which dates back almost one hundred years now, Radio Nizkor has resorted to two short works by Benjamin Ferencz, former Nuremberg prosecutor and lifetime advocate for peace.
The first piece is a 2005 preface that Benjamin Ferencz wrote to Julius Stone's Aggression and World Order: A Critique of United Nations Theories of Aggression. We have excerpted the parts pertaining to the period from post WWI until the inclusion of the crime of aggression, in 1998, among the core crimes over which the then recently established International Criminal Court ("ICC") would deploy its jurisdiction.
The second is a draft article that Benjamin Ferencz wrote in August 2012, intended for a law journal publication, entitled: "Illegal Armed Force as a Crime Against Humanity", from which we have also excerpted the passage showing the developments which have occurred in this crucial field of international criminal law between the attainment of a definition of aggression in 2010 in Kampala, for its incorporation to the ICC Statute, and today. [Back]
Footnotes have been omitted.
Crime of Aggression
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