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Sam Sasan Shoamanesh

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Defeating Aggression: Countdown to 2017

Posted: 10/03/2012 11:50 am

It has cost humanity rivers of blood, destruction of Biblical proportions, untold suffering and irreparable losses of peoples -- in whole or in part -- over millennia to finally recognize in the 20th century that war of aggression constitutes in Robert H. Jackson's eloquent words, the "supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

It took another half a century and a decade more to finally arrive at Kampala, Uganda -- the site of the International Criminal Court's (ICC) first Review Conference, where after rounds of proposals and counter-proposals, in the early morning hours of the June 12, 2010, a resolution on the crime of aggression was finally passed by consensus, giving aggression precise meaning in law, and in effect, making the waging of illegal wars a prosecutable crime before the Court.

The fact that some of the contemporary world's most militarized states participated in the negotiations in Kampala -- including the United States -- made this historic achievement all the more significant.

Resolution RC/Res.6, which has been accurately described as a compromise document, criminalizes the illegal use of force against another country in 'manifest' violation of the UN Charter; empowering the ICC to try future political and military leaders who plan, prepare, initiate or execute illegal wars, and to hold them individually criminally responsible.

Now, new Article 8 bis in the Rome Statute -- the treaty which created the ICC -- the provision defines an "act of aggression" as "the use of 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." The Article then lists acts which qualify as acts of aggression in accordance with the 1974 General Assembly Resolution 3314 (XXIX). These include: invasion, military occupation, the sending of armed bands or mercenaries, which carry out acts of armed force against another state.

Resolution RC/Res.6, also established the conditions under which the ICC could exercise jurisdiction over the crime of aggression. Under the adopted resolution, the UN 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 (new Article 15 ter). This is irrespective of whether or not the matter involves the 'wrongful acts' of a State Party of the ICC. This approach was aimed at ensuring that the Security Council remains the principal international body with the authority to classify an act of force as illegal, and then, trigger related ICC proceedings. To ensure balance however, the resolution empowers the Court to nevertheless act in the case of Security Council inaction exceeding six months -- say, due to a political impasse between the five veto wielding members of the Council -- either on its own (proprio motu powers of the Prosecutor under new Article 15 bis), or in response to a State referral under Article 13 (a) of the Rome Statute.

The negotiations animated by opposing schools of thought resulted in further compromise in the language of the resolution. For instance, except in instances of a Security Council referral, the crime of aggression is neither applicable to non-state parties (like the United States, Russia or China), nor to those state parties that opt out of its application. These restrictions have left many who wanted to see the crime of aggression treated in the same manner as other crimes under the Court's jurisdiction, rather disappointed.

Notwithstanding its limitations, however, the' Kampala amendments' have brought the once inconceivable prospect of prosecuting individuals responsible for waging illegal wars, closer to reality.

While the battle to criminalize aggression may have been won, the jury on the 'war' is still out. In short, the resolution does not yet have the force of law. The resolution will only become operative after January 1, 2017, and if at least 30 States Parties ratify the amendments. Should this condition be met, the Court can then have jurisdiction over acts of aggression committed a year after the amendments have been ratified.

Liechtenstein, under the leadership of Ambassador Christian Wenaweser, the country's Permanent Representative to the United Nations, and former President of the Assembly of States Parties to the ICC, was the first country to ratify the resolution on May 8, 2012 -- timed symbolically with the anniversary of the end of the Second World War in Europe. Samoa ratified the resolution on the 25th of September, 2012, becoming only the second country to do so. Germany already has a draft bill ready for presentation at the Bundestag, calling for ratification. The country is expected to ratify Resolution RC/Res.6 in 2013. These acts of principle and leadership are to be praised and emulated. Other State Parties must follow suit.

In the 18th century, Emer de Vattel in his celebrated work, The Law of Nations, powerfully wrote that he who wages an unjust war:

"is chargeable with all the evils, all the horrors of the war: all the effusion of blood, the desolation of families, the rapine, the acts of violence, the ravages, the conflagrations, are his works and his crimes. He's guilty of a crime against the enemy whom he attacks, oppresses, and massacres, without cause. [...] He's guilty of a crime against mankind in general, whose peace he disturbs."

More recently in December 2011, Benjamin Ferencz, one of the last surviving prosecutors of the US army at the Einsatzgruppen Trial in Nuremberg, in a special session on the crime of aggression at the UN Headquarters in New York passionately advanced a similar case. He argued in essence that those who wage aggressive wars should be seen to have committed a crime against humanity and tried accordingly - after all, illegal wars, by definition, are widespread and systematic attacks directed against an unsuspecting civilian population, and will foreseeably result in the unlawful killing of civilians, and other odious crimes usually committed in the 'fog of war', the rationale holds. The world in 2012 may not be quite ready to embrace such a well-intentioned avant-garde proposition, despite the logic of the argument.

For now, if we are to achieve any historical gain in the desired pursuit to curtail illegal wars and to hold perpetrators accountable, Resolution RC/Res.6 -- however imperfect -- is all we've got. It's therefore our collective duty as conscientious thinking-citizens to ensure its provisions are adopted with overwhelming support. Doing so will not only crystallize the ability of the ICC to deter, and that failing, prosecute those responsible for waging aggressive wars within the limits of the Court's jurisdiction, but will also serve an important milestone in the push to criminalize aggression at the national level.

January 2017 is not far off. National and regional campaigns to encourage ratification of the resolution on the crime of aggression by the Court's State Parties must be initiated and intensify. Civil society and national and international law associations ought to adopt similar campaigns and strategies to raise awareness and build grassroots support and call on ICC States Parties to adopt the resolution, without exercising their opting out reservation.

Similarly, the State Parties' political and diplomatic elite can bolster their leadership credentials by throwing their weight behind the resolution, and do what is ultimately not only in the national interest, but in the interest of humanity as an inseparable whole. (The ICC for its part must put in place the necessary trainings, procedures and guidelines so that it is sufficiently equipped to act when its jurisdiction over the crime of aggression is activated).

Centuries of warfare drenched in blood and a common yearning for a more civilized world where would-be aggressors are checked by the rule of law must compel us to act, responsibly and swiftly. Time is of the essence and the time to act is now.

The views expressed herein are those of the author alone and do not reflect the views of the ICC or Global Brief magazine.

 
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