In 2017, member States of the International Criminal Court (ICC) are supposed to promulgate the Kampala amendments to the Court’s Statute, giving the ICC a green light to prosecute those most responsible for crimes of “aggression”. But what seemed to be a formality now looks again like a subject of debate. France and the UK in particular are playing for time. The issue will be raised at the ICC Assembly of States Parties in December this year, but jurists fear that some states will try to postpone activation of the crime indefinitely.
This is a crime concerning leaders, their ministers and army chiefs. On paper, the ICC has a mandate to try perpetrators of “aggression”. But when its founding Treaty was signed in Rome in July 1998, diplomats could not agree on a legal definition of “aggression” and postponed it until later, along with the procedures for seizing the Court on this crime. In May 2010, diplomats met in Kampala to discuss this thorny issue. The “Big Boys”, i.e. those that have a right to veto in the UN Security Council, wanted to conserve their right to resort to force. They considered that they alone had the power to decide if an act constitutes aggression, explains Professor Don Ferencz, founder of the Global Institute for the Prevention of Aggression. How can a State protect its leaders from criminal prosecution for “aggression”? That is the question that the “Big Boys” tried, with some success, to address. After two weeks of tumultuous debates, 111 States adopted a series of amendments opening the way for possible future prosecutions of perpetrators of “aggression”.
But the compromise adopted in Kampala imposes tough conditions on the Court. The Prosecutor will only be able to take up “aggression” cases with the approval of the UN Security Council. If the Council has not acknowledged that a crime of “aggression” has taken place, the Prosecutor must ask its opinion and, if there is no reply within six months, get a green light from the judges to open investigations. The “Big Boys” will still have the possibility to invoke Article 16, under which the Security Council may suspend procedures of the Court for a year if it deems that they pose a threat to peace and international security. And the cherry on the cake is that a State can opt out on aggression with a simple declaration to the Registrar of the Court. The negotiations in Kampala were tough and, in order to get a consensus, the delegates agreed that the amendments would come into force in 2017, once they had been adopted by 30 member States and promulgated by the ICC Assembly of States Parties. On June 26, 2016, Palestine became the 30th ICC member to ratify the text (and two others have done so since). But it has still not been promulgated. As 2017 approached, France, the UK and the US have stepped up their offensive.
Playing for time
Paris and London together proposed to the November 2016 ICC Assembly to set up a new working group to “develop a common understanding of how the jurisdiction will be exercised”, according to the British. The Assembly agreed to appoint a “facilitator”, who is to propose a text for approval at the next Assembly, scheduled for December 2017. The discussions are “in a preliminary phase”, according to the States’ Parties’ secretariat. So London and Paris have won some time. “The States that have not ratified the amendments should be able to understand at least what their obligations would be if they decided to accept them,” explained French ambassador to the Netherlands Philippe Lalliot. France thinks that States which have not ratified the amendments should de facto be exempt from prosecution for “aggression”. Wrong, say many jurists. Even if a State has ratified the Kampala amendments, it must indicate clearly by letter to the ICC Registrar its desire to opt out. “The apparent real crux of the concern is not really about being forced to accept the ICC’s independent jurisdiction over the crime of aggression,” says Professor Ferencz, “but rather how a State will look in front of the eyes of the world if it opts out of such jurisdiction in an effort to insulate its leaders from possible judicial scrutiny for the crime of aggression.” The idea now is to opt out by stealth, because “if you opt out, you are likely to pay the political price,” says Romina Morello of Parliamentarians for Global Action (PGA). And Don Ferencz asks : “After all, is it likely that a State involved in a legally questionable military action would risk the potential opprobrium associated with electing to opt out of the Court’s aggression jurisdiction if it did not seriously believe that there was reasonable doubt as to the legality of its actions?”
The US has not ratified the ICC treaty but remains an active observer. In November 2016, the American delegate argued in support of the franco-British tandem that “it is in the interests of justice” to continue debating the issue. With regard to war crimes, crimes against humanity and genocide, the Court can prosecute individuals from non-member States if they have committed these crimes on the territory of a member State. But this is not the case for aggression. So there is no risk a US citizen could be prosecuted for such a crime. Washington nevertheless fears that activating the ICC’s power to try crimes of aggression would make it harder to find coalition partners for military action, especially if it is undertaken without Security Council approval. So the US is brandishing the humanitarian card, saying, as State Department legal adviser Harold Koh did in Kampala, that the use of force “is sometimes legitimate and necessary”. But lawyer Romina Morello says there is no confusion possible between an act of aggression and a humanitarian intervention. “The aim of a humanitarian intervention is to stop genocide and crimes against humanity, not regime change,” she explains. Morello says the definition adopted does not at all hinder a humanitarian intervention. “The United Nations General Assembly Resolution of 1974 provides that use of force can only be deemed aggression if it is demonstrated to be against the UN Charter. And the Statute of Rome also provides that the nature, degree of gravity and scale must be sufficiently large.”
At the November Assembly, a different voice was raised by Germany, which reminded people that the October 1946 Nuremberg judgment found aggression to be the “supreme international crime”. Allowing the Court to try crimes of aggression “will have an important preventive effect by forming the mind-sets of decision takers”, says Berlin, which is concerned to preserve the heritage of Nuremberg. There was already controversy over the crime of aggression when the Nuremberg tribunal was set up at the end of the Second World War. At that time, the US was in favour, but the Soviets and French were against. The US did not want to set a precedent for the future, however, proposing that the crime be limited in time and applicable only to “European countries of the Axis”. As for the French, they thought that aggression simply was not a crime and that if the Nazis were criminals it was not for unleashing the war but for the atrocities they committed. At the end of the big Nazi trial, the UN General Assembly confirmed the Nuremberg principles on December 11, 1946, and asked for the codification of “crimes committed against the peace and security of humanity”. But the Cold War froze all progress, until the Treaty of Rome negotiations in summer 1998. There was no agreement at that time, but a working group was set up. Don Ferencz recalls that Russia, China, the United States and France would get up one by one to say the same thing: that the Court cannot prosecute crimes of aggression unless asked to do so by the Security Council. He also remembers the offensive aimed at stopping the adoption of a text in Kampala. “They turned the Kampala conference into a stocktaking exercise” of the work of the Court to take up the negotiating time on aggression, he says. So the manoeuvers are many, including by some NGOs. In a letter co-signed by 40 organizations on the eve of the conference, the Open Society said it was concerned by the codification of the crime of aggression in Kampala. It said that “issues surrounding ICC jurisdiction over the crime of aggression are complex” and that “the current amendment proposal risks politicizing and overburdening the ICC, and undermining the integrity of the Rome Statute”. The issue should therefore be postponed, concluded the NGO of business magnate George Soros.
At a time when the ICC faces criticism and the African Union is still expressing strong opposition to it, Don Ferencz thinks State reticence to activate its jurisdiction on the crime of aggression could fuel the argument that “this is simply a post-colonial effort to colonise the rest of the world”, and he fears that the issue may be postponed indefinitely. “The international community created this Court, which has jurisdiction over four crimes,” explains Romina Morello. “If the States really want to help it, they can sign the voluntary cooperation agreements, execute assistance requests quickly and raise the budget, but certainly not do away with the crime of aggression.” Perpetrators of aggression are still a long way from prosecution in The Hague, but Ferencz says activating the ICC’s aggression jurisdiction would at least “send a message of hope”. “Studies have shown that to say that something is illegal makes it also more immoral,” he adds. And he points to an interesting example. What would have happened if the ICC had had jurisdiction on aggression at the time when Tony Blair was deciding to join George W. Bush in Iraq?