Military aggression almost illegal
When a permanent International Criminal Court (ICC) was finally established in The Hague in 1998, its founding document contained four classes of major crimes that could be heard by the Court. Three of them are genocide, war crimes and crimes against humanity, each with legal precedent and a clear definition in the Rome Statute establishing the Court.
The fourth crime remains a latent provision of the Statute because its definition could not be agreed. It is the crime of aggression, also known as crimes against peace.
It has one legal precedent. At the conclusion of the World War Two, individuals were prosecuted at Nuremberg for the 1939 invasion and occupation of Poland by Germany. This benchmark example has few parallels today, however. Iraq’s 1990 invasion of Kuwait, maybe, but most contemporary armed conflict is less straightforward. The advent of ‘pre-emptive war’ against Iraq highlights the difficulties surrounding this issue.
The 1945 Charter of the Nuremberg Tribunal defined the crime of aggression thusly:
"planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances."
In 1974 the UN General Assembly had another go:
"the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state."
Arab League states in particular were unhappy with the aggression provision remaining a black hole in the Rome Statute and pressed for work to continue to agree a legal definition.
The UN’s Special Working Group on the Crime of Aggression consists of some 150 diplomats, lawyers and activists, including representatives of Israel, but not the US. Taking the 1974 resolution as a starting point, it has been trying to define aggression since 2002. It met last month in New York and claims to be making "very good progress". Its new definition is expected to criminalise political or military leaders responsible for aerial bombing, armed blockade and other forms of inter-state hostility.
A second issue to be resolved is how a case of alleged aggression would be referred to the ICC. The need for an international arbiter is clear, but the effectiveness and reputation of the court relies on its political independence. The Working Group’s chairperson, Christian Wenaweser, doubts the possibility of separating "the legal from the political" in this instance. Writes Mark Turner in the Financial Times:
"Permanent members of the Security Council have argued that the council should determine when an act of aggression has taken place. But less powerful countries, as well as non-governmental groups, say that politicises the process, and puts too much power in the hands of five countries."
Human Rights Watch is one of the NGOs opposed to giving the Security Council that exclusive power. Perhaps the acceptability of this approach will increase if and when the Security Council is made more representative.
Other candidates for initiating a trial include the General Assembly — in which every UN member nation has an equal vote — or the International Court of Justice, also in The Hague. Or the ICC’s own chief prosecutor could be empowered to bring cases, as now occurs with the other three categories of crime.
Negotiations over these two questions are not expected to conclude until 2009.
The ICC has 104 state members so far and no retrospective powers. Crimes of aggression likewise, once defined, would not be prosecuted retrospectively. All the more reason to amend the Rome Statute urgently. Says a former Nuremberg prosecutor 86 year-old Benjamin Ferencz, war is "no longer an acceptable method of resolving differences among nations."
