An outside view of the new complex of the International Criminal Court (ICC) in The Hague, The Netherlands. Picture by Robin Utrecht/ABACA/PA Images. All rights reserved.In a world where states very reluctantly - if ever - cede powers to supranational organisations, the ICC has seen 124 states ratify its Rome Statute. The adolescent court is also seeing its jurisdiction expand this year to include a new crime: the crime of aggression.
Added in the last hours of the drafting of the Rome Statute in 1988, due to the dogged persistence of three Nuremberg Trial prosecutors throughout the night, the crime was mentioned in the Statute but its definition was left for later. Later was 2010, when an amendment to the Rome Statute containing the definition was agreed on by state parties in Kampala. The result of intense and lengthy negotiations, the addition was praised as a historic achievement for international criminal law. That was not the end of it, though: the amendment then had to be ratified by 30 states to come into force. In June 2016, the State of Palestine became the 30th to ratify it, allowing the court to exercise jurisdiction over the crime of aggression after the 1st of January 2017. The Assembly of States party to the Rome Statute are expected to vote to activate that jurisdiction this year.
The crime of aggression is referred to as being the planning, initiation or execution, by a political or military decision-maker, of the use of armed force by a state against another. The Rome Statute provides a list of acts that qualify as an act of aggression, including invasion or attack, bombardment, blockade of ports or coasts, and even the sending of mercenaries against another state.
Turning point, or more of the same?
The potential power of this addition to the court’s jurisdiction is remarkable. The need to hold to account those responsible for illegal acts of aggression remains one of the biggest challenges of our time, and is forever present on the agenda of international law: think Russia in Crimea, the US and UK in Iraq and Afghanistan, NATO in Libya, the US and Saudi Arabia in Yemen, etc. The ability to investigate and expose illegal military interventions and, in some cases, punish those responsible for them, will play a crucial role in moving our system of international relations away from the concept of ‘might makes right’. Already, states are increasingly seeking to justify the legality of their attacks (France came up with no less than three legal grounds for its intervention in Mali). The threat of prosecution will only encourage this trend.
Of course, for all those hopeful to see the impunity of warmongering states challenged, a reality check is called for. Firstly, the ICC’s new power will not re-open the wounds of the past: the court will only be able to investigate crimes of aggression that happen in 2017 or after. Secondly, it is possible for state parties to refuse the ICC’s authority for this crime only, via a simple procedure (Kenya did so in July 2016). Thirdly, crimes of aggression by non-party states (or in their territory) cannot be investigated, even if perpetrated against a state party. Non-party states include three superpowers (the US, Russia and China) and several regional powers (India, Turkey, Indonesia and Israel ), so any wars initiated by these states are off limits. This defers from the three other international crimes for which the ICC can prosecute non-party states if the crime was committed in a state party’s territory or if it was referred to the ICC by the UN Security Council (UNSC).
Fourthly, the UNSC can defer or block investigations for the crime of aggression, in a way that compromises the supposed independence of the ICC. Let’s imagine France invades Mali (again. This time without the alleged invitation by the Malian government). The invasion can be referred to the ICC either by the UNSC (unlikely, since France has veto power), by a state party (say, Mali) or by the ICC’s prosecutor herself. Imagine it is the latter. The prosecutor must then go to the UNSC and ask whether the Council believes France committed a crime of aggression. The UNSC has six months to give its take on the matter (note that this is before investigations start, so the Council’s decision will not be based on any fact-finding, and will likely reflect the interests of its members). If it unanimously agrees that a crime of aggression has been committed, investigations can start. In this example, France would surely disagree so the UNSC would either fail to provide an answer within six months, or reply that no crime of aggression has occurred. The prosecutor must then go to the Pre-Trial Division and convince a panel of four judges that investigations are necessary. When deciding whether to allow the investigations, the Pre-Trial Division will take judicial notice of - and put significant weight on - the refusal by the Security Council to recognise the crime. It might therefore decide that investigations are not appropriate for this situation, and France will remain immune to prosecution for invading another country.
What if the Pre-Trial Division finds that a crime of aggression clearly has happened and that disallowing investigations would be unjustifiable? Article 16 of the Rome Statute comes to France’s rescue: this provision allows the Security Council to exceptionally defer or pause ICC investigations - at any point - for a year (and again for a year after that, ad infinitum). For that, France would need its best negotiators to convince 8 other Security Council members (out of 15) to vote in favour of deferral, as well as persuade the permanent members not to veto it (a single veto would block deferral). If successful, France will not face investigations for violating the UN Charter, at least not for another year.
Clearly, this system gives the UNSC unjustified power and effectively projects the imbalance of power of international relations onto the ICC, perpetuating the impunity of powerful states. The system also encourages smaller states to do everything they can to maintain close ties with the powerful states, so as to sway their vote if investigations against them were proposed.
Let’s not be fooled: the ICC, having been created by states, inevitably reflects their interests and the power dynamics between them. You could be forgiven for hoping that this “new” crime might re-balance the activities of the court by allowing it to focus on the leaders of powerful states, who tend to wage more illegal wars than others. At last the crime would be able to counter the increasingly fair criticism of neocolonial bias (in 15 years the ICC has only prosecuted black Africans). Perhaps this new crime could redeem the credibility of the court and retain the growing number of suspicious members. In October last year Burundi and South Africa both announced their pulling out and are now spear-heading an African Union strategy of mass withdrawal. Gambia followed suit soon after, accusing the court of having become “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” With the crime of aggression, the spotlight would be on the bullies of our world: those states that can afford war-mongering, financially and politically.
Too political a crime for the ICC?
But the reaction around the world has been far less optimistic, arguing that the court is attempting to run before it can walk. It is feared that this ‘new’ crime will only politicise an already fragile institution, potentially polarising its members. Indeed investigations for the crime of aggression will involve political choices, such as evaluating a government’s claim that an intervention is “humanitarian”, or deciding whether its fear of an imminent attack was reasonable. It would also involve determining the intent of political or military leaders (and what about if they are in a coalition with other states?).
What’s more, having no enforcement powers of its own, this ICC will be dependent on states to intervene to stop a crime of aggression or arrest a perpetrator, which could then encourage disputes and hostilities between states enforcing the ICC’s indictment and those opposing the indictment.
However, the argument that the crime of aggression will politicise the court forgets that all ICC investigations are politicised. They could not be otherwise: they examine politicians and policies. The process in which they are initiated is deeply political and continues to be dependent on a political body: the UN Security Council. ICC prosecutions propose a political vision: one in which transparency and accountability matter. The court itself is the result of political negotiations and works within a heavily politicised arena, shaped by state interests. The question is not whether the ICC is becoming too political, but rather whether it can overcome politics to be effective and provide equality for states before the law.
While prosecution by the ICC for illegal war-mongering seems very unlikely as of now, the addition of the crime of aggression to the court should be cause for optimism. The threat of investigations and prosecution can be just as important as their result. The ICC needs however to remember that for this threat to be effective, it needs to be real. Deterrence literature suggests that the swiftness and especially the likelihood of punishment may more effectively deter crime than severity of punishment. The ICC is not known to be quick, and because of additional hurdles put in place for the investigation of this particular crime, it could be slower than usual. The ICC will need to increase efficiency and challenge political influences that damage its impartiality, if it hopes to find the teeth to take a bite at the impunity of powerful states.
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