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Ending war through justice – in time

|Written By John Currie, Joanna Harrington & Valerie Oosterveld
Ending war through justice – in time

Over the past two weeks, state parties to the Rome Statute of the International Criminal Court, along with non-state-parties, non-governmental organizations, and academics, have met at a resort on Lake Victoria in Uganda to negotiate amendments to the statute, an international treaty governing the ICC’s jurisdiction. 

By far the most significant of these amendments would enable the world’s first permanent international criminal court to hold state leaders personally responsible for waging illegal war, or the “crime of aggression.”

At present, no international judicial forum holds such power. The International Court of Justice in The Hague is designed to address state-to-state disputes and questions of state responsibility. And while the ICC focuses on individual criminal responsibility, to date it has only been empowered to prosecute crimes of genocide, crimes against humanity, and war crimes.

This focused subject-matter jurisdiction was the result of intensive negotiations between states at the Rome Conference in 1998, which led to the ICC’s establishment.

Readers may be aware of the court’s first case concerning the enforced recruitment of child soldiers in the Democratic Republic of the Congo, its outstanding arrest warrants for leaders of the Lord’s Resistance Army on charges of grave atrocities in northern Uganda, and its stated desire to prosecute Sudanese President Omar al-Bashir for mass crimes committed in Darfur.

The crime of aggression is, however, Rome’s unfinished business. Following the precedent set by the prosecution at Nuremberg of “crimes against peace,” states agreed in 1998 to include the crime of aggression within the nominal jurisdiction of the then-new ICC.

However, they left negotiation of the specifics, including a definition of the crime and the conditions under which the ICC would be able to prosecute it, to a future review conference.

That review conference is what brought states parties and others to Lake Victoria, just outside Kampala, Uganda, from May 31 to June 11. A “special working group on the crime of aggression” had met during the intervening years to draft proposals and lay the groundwork for bringing state parties to consensus at the review conference.

Shortly before the conference, a consensus was reached on the definition of the crime of aggression, although this was not an easy task. For a state to be accused of an act of aggression carries obvious political costs.

Moreover, the international community’s previous efforts to define aggression in the 1970s were particularly arduous and in light of that experience, it is not surprising that the 1974 definition of the state act of aggression formed the basis for consensus in Kampala on the definition of the individual crime of aggression.

Some, such as the United States (a non-state-party), argued that this wording is too vague for criminal law purposes and that key issues remain outstanding — such as whether armed force used for humanitarian purposes should be excluded from the definition. However, there was little interest among state parties in reopening this long-standing debate in Kampala.

Instead, the real battle at the review conference focused on the conditions governing the court’s exercise of jurisdiction over aggression, on which state delegations were deeply divided.

Some argued there was a need to accommodate a “vetting” role for the United Nations Security Council which, under the UN Charter, has authority to determine whether acts of aggression have occurred.

For these states, one could not ignore the post-Second World War system of international relations, which recognizes a primary role for the Security Council — and its five veto-wielding great powers — in the maintenance of international peace and security.

It was thus argued that the ICC’s exercise of jurisdiction over the crime of aggression depended critically on Security Council consent.

Others, however, emphasized the Security Council is an inherently political body, dominated by the permanent five (only two of which are parties to the Rome Statute). They argued the ICC, as a judicial body, must be free from interference or fetters by such a highly politicized institution.

There was also an element within the conference that was clearly willing — and perhaps even keen — to dilute the Security Council’s near-monopoly on matters of international peace and security.

These divisions were pronounced throughout the conference, notwithstanding proposal after proposal tabled in an effort to accommodate the bottom lines of all delegations.

In the end, and indeed in the very late hours of the warm east African night following a marathon last day of negotiations, it was decided to allow the ICC to exercise jurisdiction over the crime of aggression without the need for prior Security Council authorization.

However, this grant of independent jurisdiction is subject to significant caveats. It does not extend to acts of aggression committed on the territory of or by nationals of non-state parties (unless the Security Council refers the matter to the ICC). It is subject to declarations of non-acceptance by state parties.

And, perhaps most significantly, it will not come into effect until 2017 at the earliest, and even then only if state parties positively decide to activate this new aspect of the court’s jurisdiction.

Is this a pyrrhic victory in the battle against impunity for the “supreme international crime?”

We do not believe so. Superficially, it may seem self-defeating to define the crime of aggression and agree on the modalities for its prosecution only to defer effective entry into force and allow states to opt out of the regime.

But it is important not to underestimate the significance of two fundamental characteristics of the international legal system: symbolism and incrementalism.

Enforceability has always been international law’s Achilles heel, yet international law profoundly influences state behaviour and, increasingly, that of individuals. It largely does so, we believe, through its symbolic power.

The ICC itself is a potent symbol of accountability that has captured the world’s imagination. There is every reason to believe the Rome Statute’s newly minted (if historically inspired) definition and denunciation of aggression as a “most serious crime of international concern” will play an equally influential symbolic role, whether or not it is actually prosecuted in the short term.

As for incrementalism, it is important to recall — embedded as we are in a culture of instant gratification — that international law, including international criminal law, is a slowly evolving and maturing phenomenon.

From the abortive attempts to prosecute the German kaiser after the First World War for a “supreme offence against international morality,” to Nuremberg’s successful if limited prosecutions of “crimes against peace,” to the long Cold War years that stymied attempts to translate Nuremberg’s improvised justice into a system of international criminal law, to the eventual establishment of the ICC in 1998 — the road to the Kampala amendments defining aggression and the modalities for its prosecution has been long and tortuous.

In this perspective, the caveats and delays built into those amendments are merely a last few twists on the final approaches to the destination. Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may therefore take comfort that it is now simply a matter of time.

The authors, all international law professors in Canada, are part of a research team, with Darryl Robinson of Queen’s University, covering the impact and consequences of the 2010 ICC review conference with financial support provided by the Social Sciences and Humanities Research Council of Canada.