Reconciling Legitimate Concerns and Removing the Lock From the Courthouse Door

The Problem

The International Military Tribunal (IMT) at Nuremberg held that aggression was "the supreme international crime" for which leading planners and perpetrators could be held accountable in an international court of law. The legal recognition in 1946 that war-making was not a national right, but an international crime, was the greatest achievement of the trial and the proudest accomplishment of Robert M. Jackson, the highly esteemed United States Supreme Court judge who served as Chief Prosecutor for the United States. Jackson made clear that if law is to serve a useful purpose "it must condemn aggressions by any other nations, including those who sit here now in judgment." The trial was "part of the great effort to make the peace secure." Subsequent Nuremberg proceedings and Tokyo war crimes tribunals confirmed the profound IMT decision.

The first General Assembly of the United Nations also affirmed the Nuremberg principles. Successive UN committees were appointed to draft an international criminal code to be enforced by a permanent international criminal court. Fifty-two years later, on 17 July 1998, a new International Criminal Court (ICC) was finally approved after a hectic five-week conference of plenipotentiaries that met in Rome. The acclaim for the ICC was overwhelming. The Rome Statute authorized the creation of a new international tribunal to bring leading perpetrators of genocide, crimes against humanity and major war crimes to justice. Aggression was included as one of the four "core crimes" but the ICC was prohibited from exercising jurisdiction over that offense. Why not?

International law does not grow in a political vacuum. Some political leaders who hold the destiny of peoples in their power still do not see clearly enough the dire consequences of their failure to criminalize aggressive war. Ingrained traditions, symbols and slogans and outmoded notions of State sovereignty obscure the need for change. Article 5 (2) of the Rome Statute prohibited the ICC from trying anyone for the crime of aggression until, and unless, certain onerous conditions were fulfilled. Powerful states wanted freedom to use their power, including the use of armed force to protect their perceived vital interests. Weak states wanted a firm legal shield to protect them from aggressors. There was insufficient time in Rome to hammer out an agreement on such a contentious issue that had vexed diplomats for decades. In a last minute compromise, the intransigent aggression problem was pushed to a back burner for later consideration. An Annex stipulated that amendments could be taken up at a Review Conference which could deal with the definition of aggression and "the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime". What that meant was:

1-Aggression should be newly defined and 2- Agreement should be reached on the relationship between the ICC, which wanted to be independent, and the UN Security Council (SC) that wanted to control the show. Many expected or hoped that the crime of aggressin would remain in limbo.

The adopted Statute contained clauses that some considered obstacles and others regarded as safeguards. Before the ICC would be enabled to try any aggressor, at least 60 nations would have to ratify the Statute; (Surprisingly, the minimum was surpassed as early as July 2002, thus putting the Statute into effect.) Seven years would have to elapse before an amendment conference could be convened. The prescribed procedures for amendments were neither simple nor clear. A whopping seven-eights of the Parties would have to agree to changes. Ratification would also be necessary and those States that didn't ratify would not be bound by the provisions on aggression (Art.121). If the stalemate could not be broken, potential aggressors would certainly not be deterred but more likely encouraged to flaunt their immunity by continuing to defy the world community.

The Definition of Aggression

Opponents of the court argued that aggression was not adequately defined and was thus subject to possible abuse by a politically motivated Prosecutor. In fact, a "consensus definition": was reached and approved by the General Assembly in 1974 after about 25 years of intense wrangling by successive Special Committees. The final definition, like most compromises. was laced with ambiguous clauses to enable parties to interpret it to suit their own political advantage. Permanent Members of the SC who were less than enthusiastic about an ICC, inserted a clause that the definition was only advisory. Those opposed to an ICC also argued that the definition was intended only as a non-binding guide to the Security Council . The original assignment was linked to the Nuremberg precedents and made no reference whatsoever to the UN Security Council. Opponents of the ICC then argued that the definition did not conform to "principles of legality" because it left the final determination to an unfettered decision of the Security Council. It was not noted that many valid criminal statutes contain vague phrases, such as "fair trial," "due process, " and similar clauses that require judicial interpretation. The imprecision was caused by the same Security Council members who now complained that it was too imprecise.

The fact that the crime of aggression has already been adequately defined was asserted in 1945 by Justice Jackson, was upheld in the judgments of the International Military Tribunal and confirmed by the General Assembly in 1946. It was endorsed, after comprehensive study, by the esteemed International Law Commission experts in 1996. Several renowned scholars, like Professor Cherif Bassiouni, Professor Claus Kress, and a host of other highly regarded authors, maintain that aggression is a customary international crime that requires no further definition or is subject to universal jurisdiction as a peremptory norm from which there can be no derogation, The very distinguished British Law Lord Bingham of Cornhill, hit the nail on the head when he stated in a 2006 case "...the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure." (House of Lords Judgments -R.v.Jones 92006)UKHL 16)

Every principle of legality has been protected by detailed rules of the ICC assuring fair trial to every defendant. It is unimaginable that any competent Prosecutor would seek to indict anyone for the crime of aggression if the accused might reasonably argue that he couldn't really know that his deeds were criminal. The decoy argument that the defendant can not get a fair trial because the crime of aggression has not been adequately defined is simply not persuasive. No new definition of aggression is needed.

The Relationship of the Court to the Security Council

A more difficult dilemma is posed by the fact that all parties seem agreed that the ICC should be independent yet it is unavoidably linked to the Security Council in the UN Charter as well as the Rome Statute. The International Law Commission has logically concluded that until an act of aggression has taken place, no individual can be held accountable for the crime. Who decides? The 1974 definition of aggression was absolutely clear that, in the last analysis, it was up to the Council to decide whether any act of a State was legally permissible or impermissible. The UN Charter, that binds everyone, charges the Council with responsibility to determine whether an act of aggression by a State has taken place (Art.39). Council decisions are influenced more by political rather than legal considerations. The Permanent Members have special veto rights and this preference is understandably resented by those who do not share such privilege. Fearing a biased Council, less privileged States would like to unlink the ICC from the SC. Consideration has therefore been given to by-passing the Council and turning to other bodies, such as the General Assembly or the International Court of Justice, to decide whether a State has acted unlawfully. Each alternative posed new problems.

In addition to UN Charter mandates, the Rome Statute itself imposes significant restraints on the independence of the ICC. The Security Council has power to halt any ICC proceeding for an indefinite time (Art.16.). The Statute allows any State to divest the ICC of jurisdiction if it is willing and able to try the accused in its own national courts (Art.17.) Thus, if a country adopts the Rome Statute as part of its national criminal code, the ICC can be eliminated from the picture. Furthermore, if a State wishes to be immune from prosecution for aggression, all it has to do is fail to ratify whatever aggression amendment may be enacted. (Art.121). Numerous and complex procedural safeguards and pre-trial filters are additional impediments that may hamper prosecution. It should be recalled that investigations within the borders of hostile States and enforcement of sentences remains largely dependent upon the Security Council. SC involvement with the ICC and the crime of aggression is firm and unbreakable. The frustration of smaller States is fully understandable, but those who still insist upon ICC's "independence" should recognize that they are clinging to something they have already given away. They are unwittingly arguing about protecting the contents of an empty bag.

If the current efforts to by-pass Security Council influence is abandoned by those who mistrust the Council, what can they expect in return? Once it is recognized that SC concerns are already adequately safeguarded by the UN Charter and the Rome Statute itself, it becomes clear that no more protection is needed. Nations that nevertheless insist on additional guarantees inevitably generate suspicion and hostility. On the other hand, forgoing new demands for more restraints on the ICC would earn appreciation and good will instead of fears and resentment by the State Parties. The SC will be seen as a partner rather than an adversary of the ICC - which is as it should be. But logic can be trumped by political considerations that must also be taken into account. As long as the military may be required to intervene with armed force in situations which political leaders proclaim are purely defensive or a humanitarian intervention, commanding officers can hardly be expected to welcome the existence of any international court to test the legality of their military action. There can be no doubt that the best way to protect the lives of those who serve in the armed forces is to deter the crime of aggressive war. Supreme Commander during World War Two, Dwight Eisenhower, after he became President of the United States, warned the nation that "the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law."That conclusion has been echoed by General Douglas MacArthur commander of forces in the Pacific, as well as very many others who have experienced the indescribable horrors of warfare. Unfortunately such views are not universally shared. It is therefore important to try to halt the glorification of war by condemning its atrocities as unacceptable acts of inhumanity that are subject to punishment under the rule of law. How then should one respond if powerful states stubbornly insist upon keeping the courthouse locked with the Council holding the key regarding the crime of aggression?

A Compromise Solution

If, despite all the persuasions mentioned above, some States will not acknowledge that the current terms of the Rome Statute provides all the protection they need against unfair prosecution for aggression, a fall-back compromise position can be considered as a last resort to overcome the impasse. Even if the lock on the courthouse cannot be removed, a way can still be found to open a crack in the sealed door. A clause can be added (in Article 16 or elsewhere) to the effect that no one can be convicted of [charged with] the crime of aggression unless the Security Council has first determined [acknowledged] that a State has committed the act of aggression which is the subject of the complaint. That's just what the Permanent Members have been clamoring for and the most hotly contested bone of contention. The bitter pill can be sweetened, if necessary, by adding such generally accepted mandates as "in conformity with justice and the principles of international law" or references to the fact that any ICC judge of the same nationality as the accused would have to recuse himself and not be involved in the case. Such obligations are already included under Article 21 of the Statute. Even if the Council fails to act, and the aggression issue lies dormant on the Council shelf, potential aggressors will know that they may be held to account. The deterrent effect, no matter how modest, is an improvement over the present immunity. Surely, something is better than nothing.

Where the Debate Now Stands

Many scholarly books and articles have been written by learned professors and others offering good suggestions on how to improve the ICC Statute. The more amendments that are offered for consideration at the Review Conference the more difficult it will be to focus and reach agreement on "the supreme crime" of aggression. The mandate of the Rome Annex was primarily related to the definition of the crime and the relationship between Court and Council. Only when those two issues have been resolved should consideration be given to other improvements. Much progress has been made by the Special Working Group in reformulating a revised definition of aggression. In 1974, the consensus definition was specifically approved as an integrated and indivisible package. Severing various select clauses from the consensus definition runs the risk of inviting protracted debate at the Review Conference. Why take chances when no change in the existing definition is really necessary?

Progress has also been made by the Working Group in articulating alternatives still being debated regarding the relationship between the ICC and the Security Council. The options range from requiring prior Council consent before the Prosecutor can launch an investigation, or requiring authorization from either the Pre-trial Chamber, the General Assembly or the International Court of Justice. None of these alternatives has received general support in the discussions thus far. Any proposed amendment that can gain the required overwhelming acceptance of the Assembly would be a victory if it advances the desired goal of preventing war. The net effect of failure to reach agreement at a Review Conference, now scheduled for 2010, is to continue the dangerous impunity of aggressors and potential aggressors indefinitely - which is the inevitable consequence that ICC members hoped to avoid.

Even if the Security Council fails to live up to its responsibilities to condemn State acts of aggression, the ICC need not remain helpless. There has never been a war without atrocities. Persons suspected of aggression may also be charged with Crimes Against Humanity and War crimes, as well as Genocide, if applicable. Such trials do not require Statutory amendments or advance permission from the Security Council and they will surely attract widespread public attention. Life imprisonment is the maximum penalty for all ICC crimes, including aggression. The ICC Prosecutor, subject to the prescribed controls, could commence his investigation of aggression and his mandated report to the Secretary-General of the UN could be made public. If the Security Council has been derelict in its duties, and the prosecution for aggression is allowed to lie dormant, the Council members would be subject to the public outrage that would follow. The new information revolution offers new opportunities to arouse public opinion in support of the rule of law. The "shame factor" may be the most effective enforcement tool available to the ICC. The court of public opinion is a powerful tool that cannot be ignored or suppressed.

Recommendation and Conclusion

The best way to carry out the mandate of the Rome Annex is to accept an amendment that simply deletes Paragraph (2) of Article 5. Nothing more is needed. The Commentary can explain that, after further detailed deliberation by the open- ended Working Group, the conclusion had been reached by consensus that no further definitions or changes were necessary and all rights of the Security Council under the UN Charter and the Rome Statute are fully respected. If Permanent Members still insist on an added guarantee, a sentence can be added to the effect that no trial for the crime of aggression can be commenced without prior approval [acquiescence] by the Security Council. (The beginning of Article 62, "Place of Trial", may be an appropriate spot.) As noted above, this compromise concession , that may sound outrageous to some, in fact concedes nothing that has not already been given away. What it gains is a slight opening to the ICC that might deter some future aggressors. Is it worth the bother?

Since time immemorial, human history has glorified war as a Divine right leading to conquest, treasure and glory. The most important accomplishment of the Nuremberg trials was the condemnation of illegal war-making as a supreme international crime. That great step forward in the evolution of international humanitarian law must not be discarded or allowed to wither. The creation of many new international courts, including the ICC, despite start-up shortcomings, demonstrates that international law is on the march for the betterment of people everywhere. Making it possible for the ICC to have jurisdiction over aggression, even if it seems remote today, would be a historical achievement of incalculable significance for a more peaceful world in the future.