ICC makes waging war a crime

The International Military Tribunal at Nuremburg described aggressive wars as
'a supreme international crime' [GETTY]


By: Sam Sasan Shoamanesh

Source: Al Jazeera
http://english.aljazeera.net/focus/2010/06/2010614114457900167.html


Following the devastation of the second world war, the International Military Tribunal at Nuremburg, established by the Allied Forces to try leading figures of defeated Nazi Germany, described aggressive wars waged against other nations as "[a] supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole".

Some 60 years later, history was made in the early morning hours of Saturday, June 12, 2010 in Kampala, Uganda, the site of the Review Conference of the International Criminal Court (ICC).

For the first time in the war stricken story of mankind, waging aggressive wars has become a prosecutable crime in international law and given precise meaning and teeth before the ICC - this on the strength of an unexpected consensus reached between member states of the Court (or in ICC terminology 'states parties').

The conference in Kampala concluded with the adoption of a resolution that at last defined the crime of aggression listed in Article 5 of the Rome Statute - the Court's founding treaty - using the UN General Assembly Resolution 3314 (XXIX) as a guide.

The resolution, in effect, criminalises the use of force (for example: blockades, invasions, bombardments) against another country in violation of the Charter of the United Nations; giving the Court the power to try future political and military leaders who plan, prepare, initiate or execute illegal wars, and to hold them (individually) criminally responsible for the commission of this new, and long-overdue, international crime.

Equally importantly, the Kampala resolution settled the conditions under which the ICC could exercise jurisdiction over the crime.

No Security Council monopoly

The final text of the agreement reflects a language of compromise - in part, proposed by Canada - needed to appease all sides of the debate on the highly complex and divisive issue of empowering the ICC to prosecute those who wage illegal wars.

It does not take much imagination to guess where the dividing line has traditionally been drawn on this delicate question.

In general, most of the rift has been focused on the level of nexus that should exist between the ICC and the Security Council in the prosecution of the crime.

Thanks partly to the inconsistent track-record of the Security Council and the politically driven exercise of the veto powers of the five permanent members of the Council, most Middle Eastern and African states, and indeed the majority of the Court's states parties, have insisted on limiting the Council's involvement.

The rationale behind this standpoint is nicely captured in the opening address of the Iranian delegation, which was present at the conference in an Observer capacity.

Headed by Jamshid Momtaz, the former president of the UN International Law Commission, Iran aligned its position to that of Egypt's (which coincidentally attended on behalf of the non-aligned movement), and articulated the following:

• It is not legally convenient nor does it serve the cause of justice to tie the functioning of the Court to the decisions of the Security Council and, in a sense, leave the Court at the mercy of the Council. The Security Council is, by nature, a political organ and as such cannot act as a judicial filtering for the Court. The Security Council's practice in the past six decades indicates how dominant the political considerations of the permanent members have been in its decision-making processes. This includes those decisions made under Article 39 of the Charter, in particular the determination of an act of aggression.

Iran while recognising that the primary responsibility for the maintenance of international peace and security under the UN Charter falls on the Security Council, nonetheless adds:

•[This] does not mean, however, that the Security Council can play a determining judicial role for the Court. The prior determination of an act of aggression can facilitate the work of the Court, but the absence of such determination should not handcuff the Court. Otherwise, the raison d’être of the Court, as a judicial body, would be undermined.

It must be said that the anxiety over granting exclusive control to the Security Council is overwhelming shared by human rights NGOs.

Richard Dicker, the director of the international justice programme at Human Rights Watch captures this shared concern in the following statement.

The "ICC as a judicial body must be independent from the political interference of the Security Council that is a political organ that takes decision for political reasons".

On the other side of the debate, the most robust resistance to the activation of the crime has come mostly from the five permanent members of the Security Council.

Benjamin Ferencz, a former prosecutor at Nuremburg, and one of the leading advocates of the crime of aggression suggests this is because: "… the Security Council members do not want to surrender their powers to the ICC."

The permanent five - the UK, US, Russia, China and France - amongst other states argue that the triggering, and certainly, the classification of the Court's jurisdiction over the crime must reside on the exclusive powers granted to the Security Council under Article 39 of the UN Charter.

Turkey, a non-permanent Security Council member, had taken a somewhat similar position.


Compromise

The language of the resolution adopted in Kampala attempts to reconcile these two general schools of thought. And here is how:

Under the adopted resolution, the Security Council, after making a finding of unlawful use of force in breach of the UN Charter, can refer a situation to the Court pursuant to Article 13 (b) of the Rome Statute, whether or not the matter involves the acts of a state party.

This will ensure that the Security Council is the principal body that can classify the act as a crime of aggression, and trigger related ICC proceedings.

However if the Council fails to act within six months - say, due to a political gridlock - the Court can exercise its jurisdiction regardless and try nationals of a state party responsible for the crime of aggression on a state party referral, or when the ICC prosecutor commences an investigation on his own initiative.

In this last scenario, a prior authorisation from the pre-trial chamber of the Court is required.

These latter two options, offered as a compromise, counter the default monopoly that the Security Council would enjoy in classifying the offense and blessing it, as it were, for prosecution.

The resolution ensures that in the event the Security Council does not act, the Court will not be hampered by this inaction.

The resolution's limits

The resolution adopted in Kampala does have conditions attached to it.

For one, the newly adopted crime of aggression does not directly apply to non-state parties. It is worth recalling that major global players like Russia, China, US, Israel, Iran to name but a few are yet to become states parties.

The resolution also places restrictions on when the crime will have operative effect.

The ICC will not be able to exercise jurisdiction until at least 30 states parties have ratified the new amendments (likely to occur without difficulty).

Further, the states parties will have to wait until January 1, 2017 to activate the jurisdiction of the Court over the crime.

These are of course temporary hurdles before the crime is given full force of the law.

There are, however, other limitations.

Given that the Rome Statute is an international treaty entered into voluntarily between states, the Court's states parties can declare themselves exempt from the application of the crime (except for instances where the Security Council has referred the case to the ICC).

Additionally, the Security Council can pass a resolution deferring an investigation or a prosecution under Article 16 of the Rome Statute on grounds that they are injurious to international peace and security - such resolutions must, however, be revisited every year.

Regardless of these restrictions, make no mistake what transpired in Kampala is a tectonic step forward towards the fulfilment of a more refined international legal order where the rule of law is venerated and applied universally.

The inclusion of the crime of aggression in the arsenal of prosecutable offences of the ICC is a fundamental game-changer in global governance, forcing behavioural adjustments to the historical practice of waging war as merely "the continuation of politics by other means".

It is at this stage a fait accompli, and the world is better for it.

Significance for the Middle East

Broadly what does this development signify for the Middle East?

First, it demonstrates the truly international nature and independence of the ICC, where states parties can, on an equal basis, play a decisive role in shaping the future direction of the Court.

Unfounded misperceptions about the Court that prevail in the Middle East have to date prevented the region from reaping the benefits of ICC membership and protecting the human rights of the Middle Easterner.

In view of the tremendous losses suffered in the region through past wars and lapses in human rights protection at the national level, and with more conflicts projected to be on the horizon, it is only reasonable for states in the Middle East to ratify the Rome Statute and become states parties.

Apart from the deterrent dividend that being a member of the Court could yield by potentially changing the calculus of would be aggressors (that is strategic power), ratification would also mean empowerment and legal remedy in the event that crimes under the jurisdiction of the Court are committed.

At this juncture, the ICC boasts 111 states parties.

Of this number, the only Middle Eastern country that is a state party is the Hashemite Kingdom of Jordan; a peculiar fact given that the region has been the stage of countless conflicts and human rights violations, and its states, the victims of numerous instances of aggression.

The ICC, it has been said, "is a kind of a sword of Damocles for those who admit a possibility of achieving political goals by committing mass murders, extermination and violating international law" - these are words, tellingly uttered by the Russian delegation at the commencement of the conference in Kampala.

It is past time to partner up with the ICC, and bring the culture of impunity in the Middle East to an end and assist the Court to achieve its notable mandate.

Human beings, Middle Easterner or other, should not be condemned to have their fundamental human rights trampled upon, with the consolation that they may have tranquility and recourse in death in the realm of the divine.

Fatalism and unwarranted suspicions towards the Court must give way to more informed decision making and dexterous action.

We are living at a turning point in history where the deficits of the past are slowing giving way - through friction, trial, courage and sacrifice no less - to a more aligned and balanced relations amongst states.

We are not there yet by any means, but the velocity of change has been fixed towards a more enlightened path for humanity.

It is hoped that Middle Eastern states, and generally all states currently looking to the Court from the sidelines, recognise that the ICC is an institution emblematic of this new century; one that is fit and equipped to function - independently and impartially - in this newly emerging global arena.

After the first world war, the former US secretary of state Charles Evans Hughes - a forgotten giant of his time from the romantic era of US influence in the world - stated the following in a speech presented in 1923: "War should be made a crime, and those who instigate it should be punished as criminals."

Almost a century later, Kampala 2010 became the embodiment of these prophetic words.

We have much to be proud of. Yet the quest for peace and international rule of law is long and fraught with enumerable obstacles; but to march forward we must and collectively.

Sam Sasan Shoamanesh is the head of the counsel assistance unit of the International Criminal Court (ICC), and co-founder and associate editor of Global Brief, Canada's leading international affairs magazine (www.globalbrief.ca). http://globalbrief.ca/