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The ICC, the UN and Crimes of Aggression

‘Parliamentarians for Option 1’ Campaign

by Robbie Manson – March 1st 2007

Why does it matter so much what power the UN Security Council has over the exercise of jurisdiction by the International Criminal Court in relation to the crime of aggression?

Some useful links and downloadable PDF’s of related documents can be found at the foot of this page

Some Basics.

What is the ICC ?

The International Criminal Court (the “Court”) was established by a treaty made in Rome in 1998 called the Rome Statute for the Establishment of an International Criminal Court. Since 2002, when the sixtieth nation state ratified its signature and accession to this treaty, it has become a real physical Court, based in the Hague with powers to try individuals for the commission of the gravest crimes know to mankind, including war crimes, genocide and crimes against humanity.

It represents the first and only time, since the principles of customary international criminal law, laid down by the Nuremberg and Tokyo International Military War Crimes Tribunals after the Second World War, were declared by the First General Assembly of the newly formed United Nation in 1946, to be undoubted rules of international law, when the community of nation states, representing the so-called “civilised world”, have come together, willing to surrender or pool their own national sovereignty and submit their own nationals, or those individuals found hiding from international justice in their states, to possible trial and punishment for these horrific crimes by a permanent international tribunal.

What is the Crime of Aggression?

The first crime on the indictment for which the vanquished leaders of Nazi Germany were tried (and for which 8 of them were subsequently hanged) was termed the commission of a crime against peace. It comprised in the planning, preparation, initiation or waging of a war of aggression, or a war contrary to international treaties, agreements or assurances, by the individual political and military leaders responsible for formulating and executing the aggressive war waging policies of the Nazi state. It was described by Lord Justice Geoffrey Lawrence (as he then was) when handing down the judgement of the Nuremberg Tribunal in 1946 as follows:

“The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

The term Crime of Aggression is the term adopted by the International Law Commission of the United Nations when it later came to include this crime first within its Draft Code of Offences Against the Peace and Security of Mankind, intended to codify international customary criminal law in this area, and which formed the basis for the juridical (legal) jurisdiction of the new ICC.

Why doesn’t the ICC already have jurisdiction over Aggression?

There was, perhaps not surprisingly given the time it had taken to convene, much heated and disputed debate amongst the ambassadors of the world community at the Rome conference, as to what was the contemporary definition of the crime of aggression and equally importantly what should be the pre-conditions if any set down for the exercise of jurisdiction by the Court in relation to this crime. It is to be recalled that, whereas those likely to be charged with committing any of the other crimes, like war crimes for instance, may be lesser military leaders or even mere soldiers or defeated rebel insurgents, those charged with international aggression must by definition be only the highest political and military leaders of a nation state, including quite probably its former head of state and head of government. It is this crime which more than any other brings individual liability, to the rule international criminal law, home to them.

In particular the United States, who at that time (under the Clinton Administration) were still committed in theory to the concept of the ICC, wanted further debate over the definition of, and jurisdiction by the Court over, this crime. This was in addition to their wider concerns that the Security Council of the United Nations (“the Council”) must continue to be recognised as the supreme international body with exclusive, or at least primary, jurisdiction in relation to the prevention of international crimes such as these.

Accordingly, two important things were agreed – firstly by Article 16 of the ICC Statute – the Council, if it so resolves, may suspend the jurisdiction of the Court in relation to any particular case before it (even if only still under investigation by the Prosecutor of the Court) for a period of 12 months, and may renew these suspensions on a yearly basis indefinitely if it so chooses. Secondly that – under Art 5(2) of the Statute – whilst the mere existence of the crime of aggression in international law would be recognised, the definition of that crime and in particular the precise pre-conditions for the exercise of jurisdiction by the Court over it, would be left for further debate and negotiation, subject to the provision that any agreement on these points would be “consistent with the relevant provisions of the Charter of the United Nations”. It is for this reason therefore, that when in the summer of 2003 the Prosecutor of the Court received more that 100 complaints alleging that Prime Minister Blair of the UK (which had by then both signed and ratified the Statute), amongst others, had been responsible for committing an act of international aggression by virtue of his involvement in the invasion of Iraq in March, he had to write back advising that alas he lacked any jurisdiction to investigate such allegations.

What is the difference between the affirmative and negatory role for the Council

In this distinction lies all the political difference in the World (quite literally). If a law, usually laid down in a conventional (that is treaty based) rules regime, grants to an international body the power to affirm that something be done (or even find that it has been done), then it follows that absent the lawful and regular exercise of that power, in any given instance, that thing may not be done legally. However, if the law provides merely that the international body concerned may negate the doing of an act (or negate that an act has been done), then absent such an exercise of that power, other international bodies, with a proper and legal power in the same field, may still be free to consider the issue unimpeded.

Article 16 is an example of a negatory power in the Council, that is to say it grants to the Council if it chooses the power to stop or prevent something happening or continuing, in that instance an investigation by the ICC Prosecutor of say a former political leader for the alleged commission of a crime of aggression. Equally, for example, Art. 2 of the Annex to UN General Assembly Resolution 3314 (XXIX), made in 1974, and setting out the agreed international definition of the crime of aggression when committed by a state (rather than by an individual) also recognised the primary role of the Council granting it a similar negatory power. It states:

“..the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of a sufficient gravity.”

Why does it matter which power the Council has ? Well quite simply put, if the power is only negatory, then political deadlock, especially amongst any of the permanent members of the Council possessing the veto power (the “P5”), meaning that no resolution is possible, has the consequence that, any other international body with a legitimate interest and power, is still left free to continue to exercise that power if it decides to do so. Whereas, in the case of an affirmative power, political deadlock in the Council, which is the typical situation in practice, means deadlock throughout the rest of the World as well. No affirmative resolution would then mean no power for any other body to act in place of the deadlocked Council either. In short the political veto power of any one of the P5 would be not only a power to neutralise the functions of the Council, but also a power to neutralise the power of all other international bodies as well.

Where is the state of play regarding the ongoing debate today?

The continuing negotiations and debates, called for by Art 5(2) of the Statute, are today being conducted within an international diplomatic forum called “The Special Working Group on the Crime of Aggression” (the “Group”) which operates under the auspices of, and reports to, the “Assembly of States Parties” (the “Assembly”) to the ICC, which is effectively the international parliament of the Court. The Assembly meets in formal session on a yearly basis, and the Group also meets at informal inter-sessional meetings (usually at Princeton University). All States are invited to attend and participate in the debates whether they have signed and ratified the Statute or not. In practice this means that of the P5 states, France and the UK, as two states who have both signed and ratified the Statute sit in the front rows, and China (not signed) and Russia (signed but not yet ratified) sit in the back rows. The USA (which signed under Clinton and then unsigned under Bush Jr.!) has since passed a law in Congress (the American Servicemen’s Protection Act “ASPA”) which prohibits the federal government from making any expenditure whatever towards or connected with the functions of the Court, which has meant that the US doesn’t even send observers into the room to monitor these debates on behalf of the USA, even though most of them take place in America.

The Statute calls for a review conference to be held not before seven years after its “entry into force”, which took place in 2002 (therefore in 2009), at which time the formal opportunity will present itself for amendments to be made to the Statute to include both a definition of, and conditions for the exercise of jurisdiction over, the crime of aggression. The President of the Assembly has called upon the Group to complete its work in preparation for this possibility at least 12 months before the start of that Review Conference, to allow for the widest reasonable time for consideration by national governments of their proposals etc., and therefore in theory at least, that Group should seek to arrive at a proposal for those amendments by the end of next year (2008) at the latest. For this reason the frequency of the meetings of the Group has now been stepped up.

Now such is the consensus of opinion amongst the overwhelming members of the Group, with respect to the primacy which must be afforded to supreme political role of the Council acting in the interests of the restoration and maintenance of international peace and security, as to which see esp. Chapter VII of the UN Charter (and Art 39 in particular) ; that there is no real disagreement but that, if the Council were to determine by resolution that, in any given instance of an international situation, no act of international aggression by a state had occurred (or had been attempted), it must follow that that determination would be effectively binding on the subsequent proceedings of the Court. That would be arguably consistent in any event with existing negatory relationship between the Court and the Council established under Art 16 of the Statute. So that, since such an act of international aggression by a state is a part of the already agreed definition of the crime, it would then follow that no prosecution for aggression by an individual could then be brought (or continue) in the face of such a resolution. This is, of course, a further example of a negatory role or function for the Council.

The real debate, however, concerns the situation that should follow in the (alas all too predictable) event that the Council is deadlocked and unable to resolve on whether an act of international aggression by a state has occurred (or was attempted). The current proposal under discussion asks the Group to consider what the Court should be able to do if, 6 months after its having informed the Council of an allegation of aggression before it, the Council has been unable to make any determination in the matter ? One option (Option 1) suggests that the Court should then be able to continue (presumably unless the Council later does so resolve), The other (Option 2) provides, that it cannot proceed further with the matter at all. In effect Option 2 grants an affirmatory role or function to the Council, giving each and every member of the P5 the power to veto any investigation of, let alone subsequent prosecution by, the Court for, any allegation of aggression, whether of its own political or military leaders (current or former) or those of a political ally or otherwise..

The current situation is that at the last meeting of the Group, during the resumed 5th Session of the Assembly at the UN in New York last month, when the text of this precise difference in options was put to the Group, 38 states in their contributions in debate stated that, if left with no other option, they would back Option1 against Option 2. All of these states, to a greater or lesser extent, emphasised the point that the functions and role of the Council were essentially political, whilst those of the Court are judicial, and that its role should be kept utterly divorced from political influences and considerations, if the ultimate stated purpose of the Statute, “to remove immunity from those individuals guilty of committing the gravest of crimes outrageous to the conscience of humankind” was to be fulfilled. The notion of constitutional law, termed the “separation of powers”, meaning amongst others things the independence of the carrying out of the judicial functions of the government of a state, from political influence of the executive branch of that government, is now a legal principle seemingly widely shared by states, and one which they are willing to see transposed onto the international plane. In particular the whole of the Spanish and Arabic speaking World made this point repeatedly, and were backed up forcefully by all contributions from Africa, the continent with the highest participation of States in the Assembly.

What is the position of the UK Government and what does it matter in practice?

Only 5 states expressly stated their irreducible commitment to Option 2 instead. They were obviously the 4 members of the P5 present, and Prime Minister Howard’s Australia. Mr. Walmsley of the Foreign & Diplomatic Service (legal advisor to the FCO) didn’t actually feel the need to expressly re-iterate the position of the UK government, being satisfied to state merely that everybody present knew where the position of HMG was and he felt that it was unnecessary to explain it further.

Accordingly on the basis of the current state of play, and as a matter of numbers alone, the requisite 2/3rd majority (see Art. 121(3) of the Statute) needed to pass an amendment in the Assembly (at the prospective review Conference) in favour of Option 1, would appear to be already secured. A further debate on a difference of view exists as to whether, having made such an amendment, states should then be free to opt into acceding to it within a year (per 121(5) of the statue) or whether instead it would only become effective for everyone after 7/8th of the Assembly has ratified it (per 121(4) of the Statute) However, this fails to take account of the international and insidious political influence of the P5, over other states, when it comes to the actual vote. This influence is of course not exercised in open and public debate in the forums of the Assembly or even the Group, but rather quietly, privately and indeed secretly in back-rooms and back-channels and well away from public scrutiny.

The current consensus of view amongst many, probably most informed observers, is that absent a more compromising position from at least either France and/or the UK, many Western European states, who wield enormous influence themselves internationally with other uncommitted world states, will not be prepared to force the issue to a vote against an intransigent position adopted by both of these two current full partners in the ICC project. In particular the Scandinavian states, Holland, Italy & Belgium have all been at pains to emphasise that whilst they themselves would favour Option1 over Option 2, they’d much prefer a compromise position acceptable to France & the UK instead and have proposed several such compromises themselves to-date without any particular favour from the states thus pandered to. Only Germany and Spain of the Western European states have currently indicated an uncompromising commitment to see Option 1 adopted if needs be by majority vote.

Conclusions & Recommendations

There are those representatives of what used to be termed NGO’s, but now prefer the epithet “civil society”, within especially the Coalition for the ICC (a body which I am pleased to attend from the UK on behalf of a UK Campaigning group, the Institute for Law & Peace), who take the view that we should work to rebut or oppose this malign influence, over the work of the Group, only by means of equally quiet and diplomatic measures. Challenging the opposing positions, on the basis of their lack or want of jurisprudential and legal merits, only in commentaries and learned papers circulated after the meetings. I am no longer amongst them.

The legal, constructional and jurisprudential merits, such as there are, of the arguments put forward by those in favour of Option 2 (which as I have said at the last 2 sittings of the Group have not even included the UK) in support of their position, have now been more than completely examined and exposed for their lack of merits, by several and many various learned papers, submitted by at least three professors of international law of which I know. This singular, but all important aspect, of the work of the Group, and therefore ultimately of the Assembly itself, is now in my view reducible entirely to its political component, devoid of all international legal debate.

The time has come to call a horticultural & constructional soil displacement implement – a spade. Those states with the power of the veto over the Council, want to preserve and arguably even increase the effect and influence of that power, by extending it to a political procedural fiat over the jurisdiction of the Court, not even a UN body, in relation to this most important of all international crimes. In seeking to do so their rationale, when stripped of all of its diplomatic niceties, is nothing more than that those people with some power will always want more, it is political greed pure and simple. They want to be assured that, whilst the leaders of so-called undemocratic banana republics can be tried and punished in future in the Hague for having the gall to conduct military sallies across internationally recognised frontiers, they themselves will always be immune from such allegations with respect to their own “war on terror” geo-political ambitions. Moreover, however, they want to be in a position to dole out political largesse, by way of offering to extend such immunities to those political friends and allies they deem deserving or willing to pay for it in econo-political capital. Such political expediency would in my view work not only to utterly undermine the confidence of the rest of the world in the great good and virtue which the ICC process could and should bring about, if supported ; but moreover would merely serve to undermine any hopes of preserving any continuing genuine respect in the rest of the world for the fundamental principles of international law and behaviour which were rendered in judgement in Nuremberg, and which I regard as the living testimony of the 20-25 million dead of two world wars, which we ignore at our peril.

To this end I submit that the time has now come for committed peace loving Parliamentarians, most especially in the Western European nations with most influence, to come together outside of the diplomatic representatives and plenipotentiaries of their national governments, as the true representatives of the peace loving hopes and wishes of the peoples of these nations, and proclaim themselves committed to Option 1. I therefore propose a “Parliamentarians for Option1” meeting/seminar to be called for Portcullis House as soon as practicable, with the idea of then leading to the future holding of, hopefully together with the particular involvement of “Parliamentarians for Global Action”, further such meetings and seminars with Parliamentarians, particularly from other Western European states, with the aim of creating such a Parliamentary political clamour for international justice as will be heard even by the waverers in the Assembly of States’ Party to the International Criminal Court.

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In early 2007, leading barristers tested the evidence as to whether there would be sufficient grounds to indict Tony Blair for the crime of aggression against Iraq. They examined a number of witnesses, including Members of Parliament, diplomats, United Nations officials, intelligence experts and journalists.

Their testimony was re-told by actors in The Tricycle Theatre’s play “Called to Account – The Indictment of Anthony Charles Lynton Blair for the crime of aggression against Iraq – A Hearing”.