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The crime of aggression and the war in Syria

The Review Conference of the Rome Statute which took place in 2010 in Kampala, Uganda, has produced a limited, and for many a disappointing, contribution to the history of international law, and, in particular to the history of human rights and peace.

In Kampala it became very clear that various States were not prepared to agree on a definition of the crime of aggression for incorporation into the Statute of the International Criminal Court and even less disposed to allow that the Court should have jurisdiction over this crime, considered the most serious in the international law hierarchy, more serious even than crimes against humanity and war crimes, given that what is at stake is criminal responsibility for the commission of crimes against peace.

As a result, those who believe that the large Western powers have transformed the International Criminal Court into "a court for the savages" - as asserted by the British lawyer and former judge for the Appeals Chamber of the Special Court for Sierra Leone, Geoffrey Robertson - have found support for their argument.

Although an agreement was finally reached over this definition, it should be mentioned that the negotiations to include the definition of the crime of aggression in the Statute of Rome started over a decade ago and during this entire process as well as after its final phase in Kampala, the US State Department, emerged as one of the "opinion leaders" and led a frontal opposition to the incorporation of the definition into the Statute of the Court and, thus, its inclusion as a crime. If it had been up to the State Department, there would not have been any such definition.

However, the biggest surprise was still to come when the State Department, headed by Hillary Clinton, during a briefing on the International Criminal Court Conference in Kampala given by the Ambassador-at-Large for War Crimes Issues, Stephen J. Rapp, and a legal advisor from the Department of State, Harold Hongju Koh, explained that there were many human rights organisations who shared the State Department's position. Among others, he specifically mentioned Human Rights Watch and Open Society, opposed the incorporation of the definition of the crime of aggression into the Rome Statute, a position also adopted by Amnesty International. He also mentioned a letter headed by Open Society and countersigned by about 40 non-governmental organizations which "made clear that this is not the moment, in their judgment, to expand the court's jurisdiction to include this issue."

With this whitewash, it was clear that these organisations not only did not support the definition of the crime of aggression, but, worse still, that they were adopting a public position in support of US foreign policy, which actively opposed the International Criminal Court and its jurisdiction even before the adoption of the Rome Statute in 1998.

This fact confirmed the disruption which had gone on among international human rights organisations following 9/11 and the subsequent global state of exception which put an end to the ethical paradigms that until then supported the struggle for civil liberties and the application of international law as a means of maintaining peace.

These organisations thus broke a tradition which in some cases commenced with the republican revolutions, in particular, the French Revolution. Suddenly we found - and find - ourselves in a situation similar to that which we would face if the French revolutionaries had supported the counter-reformation or if Thomas Paine had supported absolute monarchy.

These organisations have effectively lost any legitimacy to talk about peace, much less war crimes, as was shown in the Georgia conflict, in respect of which Human Rights Watch produced a report on the war that was completely unsupported by the facts. Likewise the reports of Amnesty International during the war in Libya and what is now going on in the War of Aggression in Syria.

It is an insult to our intelligence that the United States, France, the United Kingdom, Spain and NATO try to impose Jihad fighters on us as champions of freedom - just as Ronald Reagan and George Bush Senior did with Bin Laden in Afghanistan - or that they try to make us believe - with well-organised and extremely expensive PR campaigns - that Qatar and Saudi Arabia fight for democracy and freedom.

It is as if they would have us believe that, when the Spanish king Fernando VII re-established absolute monarchy in 1814 and was welcomed by the people with cries of "Long live the chains!" he was acting as a defender of civil liberties and democracy. These absolutist, theocratic and pro-slavery regimes, are the antithesis of civil liberties and therefore it is impossible for them to support anything that has a whiff of secularism or civil liberties.

The case of France is particularly surprising and demonstrates the state of ideological corruption among the French governing classes who, having supported the Jihad warriors in Libya and now in Syria, try to convince us that the only possible solution lies in proxy interventionist warfare where Quatar and Saudi Arabia act as intermediaries of NATO and the State Department itself.

As a result, the discourse that they are fighting against tyranny is demonstrably false and lacks any possible rational support. Reality shows us that they are seeking to dismantle countries and destroy their industrial and state infrastructure whilst decisions are being taken outside national parliaments and the entities of Western democratic representation.

This was apparent in the case of the Iraq war, which converted that country into a non-viable state dragged into a racial conflict. This was achieved by resorting to counter-intelligence operations reminiscent of those used by the Nazis in Eastern Europe and, by means of which, the Jihad fighters, trained by British and US counter-intelligence officers and integrated into Al Qaeda, became the new social and political leaders, as has likewise occurred in Libya.

In 1945, Justice Robert H. Jackson, Chief of Counsel for the United States before the International Military Tribunal at Nuremberg, stated "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal". This principle was articulated in the Charter and the judgement of the main Nuremberg trial, a principle of international law which had risen out of the League of Nations at the beginning of the 1930s. It made the war of aggression and preventive war a crime for the first time in history.

International law and the United Nations Organization have become the target of this new breed of militarist policies. The 9/11 attacks acted as a catalyst for these policies under theories of terrorism as the new enemy, although they existed before that date.

In Kampala, a definition of the crime of aggression was agreed upon, pursuant to which:

"[A]ny of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314(XXIX) of 14 December 1974, qualify as an act of aggression:

    a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

    b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

    c) The blockade of the ports or coasts of a State by the armed forces of another State;

    d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

    e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

    f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

    g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein."

It is not necessary to be an expert in international criminal law to understand that the Libyan War, notwithstanding the UN Resolution on the subject, should be considered as falling within this definition of the crime of aggression, and that, for example, the then Spanish Defence Minister, Carme Chacón (PSOE), is therefore responsible for this crime before international and domestic law. The same would apply to those who ordered the bombardments exceeding the terms of the resolution for a no-fly zone over Libya.

Currently in Syria there are a group of countries who are putting the world at risk of nuclear war, while the indirect attack promoted by the US and NATO (interposing Qatar and Saudi Arabia) and run from military bases inside Turkey, is used to finance and arm paramilitaries using a military strategy very like that used by the US and Argentinian armies in the Central American wars during the period in which John Negroponte was ambassador in Honduras.

It matters little that there is a dictatorship in Syria; if this were the real problem, as the Vatican has stated, there exist the necessary conditions for a political accord between the groups and the political parties which operate inside the country. However, it is not about this, it is about destroying Syria and provoking a casus belli with Russia.

When Cheney was in office, this strategy was called "the war of the three hundred million" being the number of dead that the then US Vice President calculated would be the cost in human lives of a nuclear war against China and Russia.

This is the true paradigm of the suicidal and unmasked military strategy that is now being implemented in Syria and which is concealed from us all by a campaign to suppress information, using the press as part of an immense counter-intelligence operation which is taking place before our eyes when we turn on any television or read any newspaper.

As much as those responsible for this militaristic and suicidal strategy believe that they enjoy immunity and that the International Criminal Court is limited to the trial of "African savages", it is certain that we are facing a war of aggression. Goering and Hitler thought the same thing and history tells us what happened to them in the end.

There is still time to confront the irrational militarism and immense counterintelligence operation which seeks to consolidate a global state of exception where freedoms are replaced by a real religious counter-reformation led by absolutist states where all that matters is racial origin and religion.

Radio Nizkor, 06 August 2012

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