Crime of Aggression
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What future for the crime of aggression? |1|

When the Statute of the International Criminal Court was approved at a diplomatic conference held in Rome in the summer of 1998, many considered it a miracle - but not necessarily as to the crime of aggression. Though listed among the Court's four core crimes, aggression was so hotly contested that the drafters couldn't reach definitive agreement as to how to handle it. Accordingly, as a compromise, the Statute provided that the Court would only exercise its aggression jurisdiction after such time as additional provisions could be adopted, defining the crime and setting forth the conditions under which such jurisdiction could be triggered. From the outset, aggression's future was an open question.

The London Cenotaph

In May of 2010, representatives of the Court's governing body, the Assembly of States Parties (the ASP), met at a Review Conference in Kampala, Uganda, where aggression's definitional and jurisdictional amendments were adopted by consensus - but not without strings attached. It was agreed that only acts constituting "manifest" violations of the UN Charter as to their "character, gravity, and scale" would be covered - leaving plenty of room for argument as to the precise parameters of the crime. Unless a case is referred by the UN Security Council nationals of non-States Parties will be completely exempt from the Court's aggression jurisdiction. The same is true for nationals of States Parties which elect to opt out of such jurisdiction. Finally, the Court's aggression jurisdiction won't be activated until the relevant amendments are ratified by at least thirty States Parties and re-approved by the ASP sometime after the end of 2016.

In the lead-up to Kampala, critics of aggression jurisdiction cautioned that cases initiated by the Prosecutor or at the behest of referring states could be politically motivated. Yet the Court's independent jurisdiction over aggression will be essentially consent-based, effectively eliminating such risk. Given this, the delaying measures woven into the Kampala amendments smack of obstructionism.

Those wishing to maintain the status quo have their reasons. Some simply don't want to see the Court vested with aggression jurisdiction at all. Other than for cases referred by the Council, States Parties will have tremendous flexibility in being able to opt out of the Court's aggression jurisdiction, but doing so would be hugely hypocritical and potentially embarrassing. It's no secret that the permanent members of the Security Council (the P-5) have said all along that prior approval of the Council should be an absolute prerequisite to prosecution, yet the amendments, as crafted in Kampala, allow for possible prosecution without such prior approval. Little wonder that the P-5's fingerprints were all over the restrictive provisions delaying their activation.

Thucydides, the ancient chronicler of the Peloponnesian Wars, wrote that "the strong do what they can, and the weak suffer what they must." But times have changed. Today's standard of "equal justice under law" is intended to level the legal playing field. Powerful states which exaggerate the significance of statutory ambiguities or the purportedly adverse effects of activating the Court's aggression jurisdiction risk compromising their own credibility. States which fail to support the amendments may be criticised for complicity in maintaining continued impunity for aggressors - a clear betrayal of what was agreed to in Kampala.

Past efforts at limiting war-making may prove instructive. In the late 1920's, the Treaty for the Renunciation of War as an Instrument of National Policy (the Kellogg-Briand Pact) was embraced by most of the major powers of the world. The U.S. Senate overwhelmingly approved it, by a vote of 85 to 1. The lone dissenter was Senator John J. Blaine, of Wisconsin. He knew the treaty failed to provide sanctions in the event of its breach. Moreover, certain countries, including Britain and the United States, had qualified their accession with declarations reserving the right to use force whenever they felt that defence of their interests justified it. He warned that, "weighted down" by such reservations, the treaty contained "the fertile soil for all the wars of the future." Without enforcement mechanisms, it was unable to deliver on its implied promise to outlaw war - an institution which Blaine described as existing "because certain nations propose to dominate and bully the rest of the world."

Kellogg-Briand's shortcomings may well have been on the mind of Robert Jackson, Chief Counsel for the United States at Nuremberg, when, in October of 1946, he issued a report to President Truman on the judgment of the International Military Tribunal. With obvious satisfaction at the ground-breaking legal precedent which had been achieved, he reported that "No one can hereafter deny or fail to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law and law with a sanction."

Jackson had forcefully articulated the beating heart of those principles in his opening statement to the Tribunal, declaring "The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched." Submitting vanquished aggressors to the judgment of the law, as he so eloquently put it, was "one of the most significant tributes that Power has ever paid to Reason." For Jackson, the lesson of Nuremberg was clear: aggressive war is a "menace" that must be curtailed by enforceable law. The Court agreed, branding it "the supreme international crime."

In December of 1946, the UN General Assembly affirmed the Nuremberg Principles and resolved to develop a code of offences against the peace and security of mankind. Such efforts were stymied by the Cold War, prompting Dwight Eisenhower, while President of the United States, to hazard the prediction that "people want peace so badly that one of these days governments are going to have to get out of their way and let them have it." Exactly what he meant by "one of these days," however, is anybody's guess.

At Kampala, the Review Conference resolved "to activate the Court's jurisdiction over the crime of aggression as early as possible," and a global campaign is currently underway to advance that goal. During a ratification workshop held at the ASP session in November, 2012, a non-State Party observer suggested that the Court might be better off concentrating on atrocity crimes, rather than aggression. Jutta Bertram Nothnagel, of the Union Internationale des Avocats, responded by reminding those present that war-making itself "is the greatest atrocity of all." With quiet dignity, she then offered a simple plea: "Join us."

Similar workshops have been held in New York, Strasbourg, and Gaborone. Based on ratifications to date and supportive pledges by dozens of countries, there is reason for optimism that activation of the Court's aggression jurisdiction may soon be within striking distance.

In the meantime, there may yet be room to tighten the impunity gap. In the absence of aggression jurisdiction, those responsible for setting in motion illegal uses of force inevitably resulting in widespread death or injury of civilians may still be subject to prosecution for crimes against humanity, over which the Court does have active jurisdiction.

In the final analysis, the Court lacks enforcement mechanisms of its own and must rely on the cooperation of states in executing arrest warrants and facilitating investigations and prosecutions. Certainly, prosecution for the crime of aggression could present significant challenges, such as accessing classified intelligence materials and sources, but such challenges are not unique to the crime of aggression and can be managed if the Court is adequately supported.

The ICC is complementary to national jurisdictions, meaning that cases are to be heard, if possible, in national courts. Consistent with this principle and with their obligation to cooperate with the Court, States Parties should incorporate the Statute's core crimes in their own criminal codes. As to aggression, domestic courts should be empowered to try their own nationals for the crime. Beyond this, states generally have jurisdiction over crimes committed on their territory, regardless of the perpetrator's nationality, but because aggression is a leadership crime head-of-state immunity may bar domestic prosecutions. By contrast, such immunity is not recognized by the International Criminal Court, making the Court a potentially more suitable forum for aggression cases.

In the end, it may well be the court of public opinion which will be most influential in bringing the world closer to prohibiting the illegal use of force as a global norm. With the centenary of the commencement of World War I approaching, and with ongoing violent conflicts prominently in the news, considerable attention continues to be focussed on the indiscriminate suffering which armed conflict invariably entails. Given humanity's long history of organized killing, one might well ask whether it is reasonable to expect the world community to effectuate the steps necessary for holding to account those responsible for the illegal use of force, but self-defeating cynicism is no substitute for working toward continued progress. The wheels of justice, known for grinding slowly, grind better when given a push.

Epitaphs such as that etched on the London Cenotaph (pictured above) bear steady and silent witness to the tragic legacy of war-making. The sacrifice of lives cut short by war can perhaps best be honoured by efforts dedicated to ensuring that future generations may be spared a similar fate. To that end, the International Criminal Court system stands as a beacon of hope -that in the tribute of Power to Reason lies the way forward for civilization's very survival.

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1. The author, Donald M. Ferencz, is a Visiting Professor at Middlesex University School of Law in London and the Convenor of the Global Institute for the Prevention of Aggression, He may be reached at [Back]

Editor's Note: The piece set forth above represents the final draft of an article submitted by the author to Global Brief magazine, prior to modification by its editors. Other than with respect to a minor correction of a quotation from Justice Robert Jackson (for which the author assumes responsibility), the draft presented herein is unaltered from its form as authorized for publication. We reproduce it herein with the express approval of the author and with his appreciation for the efforts of Global Brief in advancing the worldwide campaign to outlaw illegal war-making. See:

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Aggression and Illegal Use of Force
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