It is widely understood that the International Criminal Court has jurisdiction to try individuals, including political and military leaders, for the worst crimes of international concern, the so-called “atrocity crimes” i.e. genocide, war crimes and crimes against humanity.
Less well known is the fact that a fourth category of crimes, the crime of aggression, is also among the core crimes included in the Rome Statute, the Court’s founding treaty.
The crime of aggression was included in the Statute in 1998, but was left undefined, with the understanding that provisions on a definition, and on modalities for the court’s exercise of jurisdiction, would need to be adopted later by a treaty Review Conference.
The 2010 Review Conference in Kampala, Uganda adopted by consensus a definition of the crime of aggression and provisions on the conditions for the ICC’s exercise of jurisdiction. They decided that the Court’s jurisdiction would (a) require ratification by 30 states parties, and (b) be subject to a decision to “activate” the Court’s jurisdiction, to be taken some time after 1 January 2017 by a two-thirds majority of state parties.
Thirty-two states have now ratified the Kampala amendments. Canada’s previous government showed no interest in the matter, preferring to advocate measures to limit the ICC’s budget. Consequently, Canada has still not taken a policy decision on whether to ratify or support activation of the Court’s jurisdiction, which may take place as soon as this December’s meeting of ICC States Parties. Canada’s options were among the topics of discussion at a seminar February 13 in Ottawa on “Canadian consideration of the Kampala amendments to the Rome Statute on the crime of aggression,” which brought together international experts, Canadian civil society representatives and officials from the ministries of Foreign Affairs, National Defence, and Justice.
Aggression refers to the illegal use of force between States. The 2010 agreement means that the Court’s jurisdiction will apply to “a person in a position effectively to exercise control over or to direct the political or military action of a State.” The Court must be able to prove that the perpetrator was involved in the “planning, preparation, initiation or execution of the State act of aggression.”
Although aggression was among the crimes prosecuted following World War II, at Nuremburg and at the Tokyo Military Tribunal, it has always been controversial. Article 2(4) of the Charter of the United Nations prohibits the threat or use of force against the territorial integrity or political independence of any state. However, the Charter also allows two exceptions: firstly, individual or collective self-defence by states involving the use of force is authorized (article 51); and secondly, the use of force can be authorized by the UN Security Council (e.g. under article 42). The body that is to determine the existence of a “threat to the peace, breach of the peace or act of aggression” is the Security Council, which is also entrusted with wide powers to make recommendations or decide what measures shall be taken to maintain or restore international peace and security. Understandably, the five permanent members of the Security Council (the P5—China, France, Russia, the UK, and the USA) have opposed the idea of a separate body, like the International Criminal Court, being entrusted with the authority to determine the existence of acts of aggression and prosecute those who might be guilty of the crime. They characterize aggression as a “political crime” which should remain the domain of the Security Council.
However, these objections were overcome at the 2010 review conference. One of the compromises agreed in Kampala, the definition of the State act element of the crime of aggression, stipulated that an act of aggression must “by its character gravity and scale” constitute a “manifest violation of the Charter of the United Nations.” This threshold clause ensures that only the most obvious and unambiguously illegal instances of the use of force by a State can give rise to individual criminal responsibility of a leader of the State responsible for an alleged act of aggression under the Statute.
During the negotiations in Kampala some delegations wanted to widen the definition to include non-State actors more broadly. Most modern armed conflicts occur within, not between states. There was concern that non-state perpetrators of aggression would avoid the Court’s jurisdiction. In the end, most delegations preferred to stay within the realm of the definition of aggression that was adopted by the UN General Assembly in a 1974 resolution. This definition allows prosecution of “armed bands, groups, irregulars or mercenaries” provided they have been “sent by” or are “acting on behalf of” a State. Clearly the application of the strictures proscribing aggression for non-State actors will need to evolve over time through judicial practice and progressive jurisprudence.
At a time when the currents of international politics suggest a drift away from the rule of law and toward growing extremism and conflict, there are also hopes that middle and smaller powers will take action to reinforce multilateral machinery for the peaceful settlement of disputes.
Such sentiments were given expression in a statement at the February 27 opening of the 34th Human Rights Council session in Geneva, by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein. He said, “To those political actors who, as in the days of the League, threaten the multilateral system or intend to withdraw from parts of it, the sirens of historical experience ought to ring clear. We will not sit idly by. For we have much to lose, so much to protect. And our rights, the rights of others, the very future of our planet cannot, must not be thrown aside by these reckless political profiteers.”
The debate over the ICC’s jurisdiction over the crime of aggression demonstrates that the progressive development of the rule of law still matters—perhaps now more than ever.
Fergus Watt is Executive Director of the World Federalist Movement – Canada, the agency that organized the February 13 seminar on the crime of aggression.