Monday, April 12, 2010

Crime of Aggression: Pragmatic Reasons or a Fear of Scrutiny?

In May, states party to the International Criminal Court (and other observers) will gather in Uganda to discuss the 1998 Rome Statute; one topic on the agenda is the definition of a crime of aggression. The crime of aggression was included in the Rome Statute, but a lack of consensus over definition prevented the ICC having jurisdiction over the crime thus far.

The United States, following World War Two, famously included the inclusion of a crime of aggression in the Nuremburg and Tokyo Trials. Robert Jackson, Chief Prosecutor for the US, stated: "to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime..." However, in a situation that is all too familiar, the shoe does not fit so well when it is on the other foot.

Articles in the New York Times and Washington Post argue that jurisdiction over crimes of aggression would be terrible for pragmatic and political reasons. However, it is evident - both explicitly and implicitly - that fear of judicial scrutiny for US aggression lies at the heart of their arguments.

Both articles assert that jurisdiction over the crime of aggression would be too difficult because one could never successfully enumerate the grounds on which the crime occurs. And indeed, their arguments carry significant truths. There will be considerable difficulties in establishing how to assign individual responsibility for group actions. It will be immensely complex to determine the definition of aggression, and when an act of aggression becomes a crime of aggression. And formulating the relationship between the Security Council and ICC's jurisdiction over crimes of aggression will be far from easy.

However, these are obstacles to be overcome not dismissed. Legal systems across the world have always been plagued by difficulties of definition, but no one gave up prosecuting murder because of the difficulty in defining intent.

ICC signatories are doing wonderful work to build consensus on the parameters of the crime of aggression. One particular definition of the crime of aggression, I believe, is particularly praiseworthy:

"For the purposes of this Statute, the crime of aggression is committed by a person who is in a position of exercising control or capable of directing political/military actions in his State, against another State, or depriving other peoples of their rights to self-determination, freedom and independence, in contravention of the Charter of the United Nations, by resorting to armed force to threaten or to violate the sovereignty, territorial integrity of political independence of that State or the inalienable rights of those people."

How could such a statement be disagreed with? Michael Glennon, the writer of the NYT piece and Professor of International Law at Tufts, argues that jurisdiction over a crime of aggression: "will force hundreds of political and military leaders who act in good faith to guess when and where they will be arrested in their international travels. It will strain relations among allies and exacerbate tensions among adversaries. It will bollix an international equilibrium that already is precarious enough."

Glennon appears unaware that "international equilibrium" is bollixed because of unchecked, unilateral acts of aggression, not the other way round. Universal judicial scrutiny is fundamental if unjust, illegal and destructive acts of aggression, like the attack on Iraq, are to be prevented in the future.

At the heart of US opposition to the ICC and jurisdiction over crimes of aggression is Glennon's worry of "good faith" practitioners being prosecuted. As Stephen Rademaker argues in the WP article: "Washington has always been the sole judge of whether a particular use of force was justified under international law." If the ICC were to take over this role, the US ability to act aggressively would be considerably curtailed. If the structures to investigate crimes of aggression had existed in 2003, would Cheney, Bush and Blair have acted so rashly in Iraq?

Contrary to Rademaker and Glennon, I believe jurisdiction over crimes of aggression will not inundate the ICC with prosecutions; that is not the predominant aim. Rather, jurisdiction over crimes of aggression will reinforce Benjamin Ferencz's wise words that "war-making is no longer a national right" and that no country can act with impunity.

1 comment:

  1. Search for the general and specific definition of the crimes of aggression

    The adoption of the crime of aggression into the Rome Statute and reaching consensus on definition of the crime of aggression are the main goals of the International Criminal Court Review Conference held from May 31 to June 11, 2010 in Kampala, Uganda.

    A proposed definition of the act of aggression (“the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”) is appropriate for international or inter-state aggressions.

    However, the recent tragic war and war crime experiences from the former Yugoslavia (more precisely: Croatia, Bosnia-Herzegovina and Kosovo), Rwanda, Darfur, Chechnya, Iraq and other countries show that crimes against peace and crimes of aggression can happen within the borders of the same sovereign state.

    In the case of an ethnically and religiously complex states, an act and crime of aggression can commit an individual or group of people who have oversight over the armed forces, police, intelligence and other forces of repression.

    If the crime of aggression were defined as proposed (taking military action against another state), then Pol Pot, Slobodan Milosevic, leadership of the Yugoslav Army and Idi Amin could have gone on massacring “the others” in their sovereign states in fair confidence that they would not be ousted.

    In Europe and the world there are still many ethnically and religiously complex states in which they may appear undemocratic regimes, and genocidal movements, which can commit crimes against peace and crimes of aggression within the sovereign state.

    Precisely because of the complexity of the problem of the war crimes in the modern world (in our opinion, the rhythm of war crimes has this sequence: a crime against peace, crimes of aggression, war crimes, crimes against humanity and genocide), it is very difficult to find a simple, generic, general definition of the crime of aggression.

    Instead of searching for a single definition for crimes of aggression, the solution should be found different varieties and types of aggression: international and domestic.

    Of course, a problem in the search for consensus in defining aggression is a well known fact that there are numerous cross-cultural differences in defining terms. As an individual could well be a terrorist in one country and a freedom fighter in the other one, a military intervention for members of one ethnic group could be an act of aggression, while other group could see the intervention as a heroic move of armed force to preserve national unity.

    Finally, in defining the act and the crime of aggression, participants of the Kampala Conference should ensure the legitimacy of international military operations aimed at the prevention of humanitarian disasters such as, for example, was the NATO intervention in Bosnia and Herzegovina and Kosovo.

    For all these reasons we hope that the participants of the Review Conference at the end will find a suitable and useful definition of the crime of aggression.

    It would be ideal but not realistic, that the idea and definition of the crime of aggression would be accepted by the major powers that were at the conference in Uganda observers: U.S., China and Russia.

    Dr. Slobodan Lang and dr. Slaven Letica, University of Zagreb