ICC Jurisdiction Over the Crime of Aggression
I have just been informed that I have been drafted to say something. You will be happy to know I will not go into any of the problems with which you have been dealing because I hope you will settle them all, and when you come to the review conference you will present a package which represents the consensus of this body, which has been dealing with it for 10 years. If you do not do that, I am afraid they will refer it to another committee and, somehow, I have a suspicion, that I may not live all that long, until you get to the end of it.
I will confine myself to only one simple point. A decision was reached after World War II - where I fought as a soldier, and I know all the horrors of war as I am sure all of you here do - and it was a radial transformation in society in which warfare, which had always been glorified in the past, was condemned not as a national right , but as an international crime.
That decision, by the International Military Tribunal - and I was there as it was read - is being followed up by what you do here now. And you, finally, in Rome - it was a miracle of achievement - finally an International Criminal Court was established. And there it was: aggression is a crime. But no court can deal with it. That is rather sad. And it is not a very fitting tribute to those who died: about 50 million people, trying to stop war making. So it comes to me now, you are working on it (and I wish you the best of luck, and I hope you do, under the able chairmanship of our friend Christian Wenaweser). But I cannot avoid the thought: what happens if you do not? Suppose you do not reach agreement. Do you continue, after all these years - sixty years ago it was affirmed, unanimously, by the General Assembly of the United Nations, which affirmed the Nuremberg principles - if you still cannot do anything about it? It seems to be too absurd, as well as too sad.
So I come up with an interesting thought, which I leave you for consideration: in the event that everything else fails, what do you do then? My own personal feeling - I represent no organization, I represent nobody, I represent myself and suffering humanity - just cut off the second sentence of paragraph 5, which was inserted in Rome because they could not reach agreement. They said aggression is a crime, but we cannot reach agreement, so let us put it aside until certain other conditions have been met.
Many people hoped, those who believe in power and not in law, that the conditions would never be met. So far they have been proved right. The result is that any aggressor who wishes to commit the crime of aggression is at liberty to do so without any fear. There is no deterrent effect at all.
If, however, you eliminate the second paragraph, which was put in as a precaution, just to keep the Rome Conference from collapsing completely (and it was a wise precaution!). If you eliminate that and go back to your previous status, you had a statute, which I think certainly and fairly represented the interests of the principal considerations here, as the French delegate was expressing so cogently as I walked in a bit late - I'm sorry about that - this morning. We are trying to balance the position of a need for an independent tribunal with the responsibilities, which the United Nations Charter - fairly or unfairly - gives to a certain group of people to maintain the peace. This is the problem: balancing the two. You had it all in balance, except for the definition of aggression.
I personally sat in this building for 28 years and listened to them debate the definition of aggression, and finally they reached a consensus definition of aggression, in 1974, and everybody was very proud. And I think it was in this room that all the members of the special working group stood together - and the chairman very kindly invited me to come and stand with the group although I was the only person in the audience then, (now we have many NGOs, its wonderful) - and asked me to stand with the group and it was a consensus definition. It was a great achievement! And then I have heard a thousand times: there is no definition of aggression. What do you mean there is no definition of aggression? If it was good enough for Justice Jackson and for the French and the Russians and the British, at the International Military Tribunal, and it has been good enough for the Tokyo Tribunal and other tribunals and the International Law Commission? And it is suddenly not good enough to allow a fair trial under principles of legality? In fact, you do not need any more definitions. The Judges are quite competent to look at the precedents, and look at the history, and to look at all the treaties that have been enacted and to reach the right decision. Seeking a new definition is an excuse you are using for not going forward! Or you are falling into the trap or tying yourselves up with that.
They said: get a definition. Well you have a definition, you do not need it! The relationship between the Security Council and the International Criminal Tribunal - a very delicate, political problem, admittedly so - but it was more or less solved. You gave all the power away to the Security Council in Rome. Many of the powers; almost all of them. You lived with it then, why not live with it now?
So I come to my basic point: if you eliminate the second paragraph of article 5 - which says you cannot act on this crime - you do not have to change anything! Nothing!
Now, of course, all of the things you are talking about - clarifying article 121, whether it is section 3, 4, or 5, or whatever - very fascinating, very good. Leave it for professors to deal with. Leave it for the judges to deal with. You do not need it to go forward.
I ask you only one little thing. One little thing! And it does not take away anything from any interests, which are already in the statute. And that is: allow the Court to deal with the crime of aggression. It may be that the Security Council will never touch it. They might put it on the shelf - as has been pointed out by Portugal and by others - since the Security Council does not like to call people with aggression as they might be called with that themselves, so they put it aside. It may be that they will not act on it. But what has been the effect? The effect has been that a potential aggressor sees that he might one day be tried. That is a deterrent effect! And if you do not think so ask Mr. Pinochet. And if you do not think so read the secret minutes of the London Conference when the leading general says, 'I'm not going into Iraq unless I have a legal opinion, I don't want to be sitting next to Milosevic.' And we have it there. And we have it here with our colleague Elizabeth Wilmshurst, who walked out and said, 'I cannot any longer serve a government which is committing the crime of aggression.' So there is a deterrent effect, even if nothing further happens.
If you have no deterrent effect, if you do not take the lock off that door, you are not only not deterring them, you are encouraging them to commit more crimes. And that, I think, is not what you want.
So, if you want to get to where you are going, in the event you cannot get there by these means, I have a simple solution for you. Everyone can understand it. The Court is competent to deal with the crime. The details will be worked out later. The exact same solution you reached in Rome. Defer it for later consideration. What do you call it? The elements of the crime? Or if you call it a "refined definition." Or, whether you call it anything else you want to call it, deal with it later. The criminal knows he may be tried.
In addition to that, as a former prosecutor, and some of you may know (I do not like to repeat it), I was the chief prosecutor in one of the subsequent Nuremberg trials. I convicted 21 of the high ranking SS Officers of murdering over a million people in cold blood. I know the criminals; I know their mentality. I do not want to see anybody escape, and there is a way to avoid that: at the same time you charge the criminals with crimes against humanity - and that war making is a crime against humanity - you charge them also with war crimes. The criminal is in jail awaiting trail, you are preparing your case against aggression. If you first need Security Council approval wait for the Security Council approval - but what they cannot impose upon you (and do not tie the hands of the Prosecutor, as has been pointed out here) is letting the public know the truth. They have a right to know the truth! Those who are being sent off to kill and to kill others have a right to know the truth. Let the Prosecutor give the facts to the public. Then you will see the power of these young people who are waiting here now (and you heard a moving appeal from Robbie Manson of Wales). Think of those who died. Think of the future generations. The publicity and the new technological revolution will move the Security Council. And if they do not move, if there is enough of an outcry, there will be change.
It is not that you sit on your hands and a criminal walks free. On the contrary: you uphold the principle of Nuremberg, which was a tremendous step forward (do not throw that away or you are going back to pre-Nuremberg days and God help you!). Proceed on the other crimes as best you can, and postpone your other problems for later consideration. You do that, and I will go in peace.
Thank you very much.