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29Nov17

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Great powers try to prevent the activation of the jurisdiction of the ICC over the crime of aggression

By Donald M. Ferencz |*|

The 11th of December, 1946 was an historic day in the world of international law. The General Assembly of the United Nations met in New York that day and unanimously affirmed the principles of the Nuremberg Charter and judgment. They, thereby, confirmed aggressive war as "the supreme international crime" and laid to rest the argument that statesmen are somehow above the law.

Yet the upcoming anniversary of this historic date may be marred by the making of an altogether different sort of history. If behind-the-scenes wheels which have been set in motion by a few major powers are not stopped in their tracks, the second week of December, 2017 might well see events which will toll the death-knell for the crime of aggression itself. Next month, after 71 years of effort, the crime of aggression will, at long last, be considered for activation as a crime made punishable by the International Criminal Court (the ICC). Yet there is a very real risk that, instead of finally being activated, aggression may be relegated to a zombie-like state of legal limbo - a crime still without a court. In a twist of supreme irony, it is the very nations which sat in judgment at Nuremberg - those which established aggression as a crime in international law - who may be responsible for aborting its activation as a crime now made punishable by the ICC.

The aggression amendments which are up for re-approval next month have already been unanimously approved at a Review Conference held in 2010 in Kampala, Uganda. Under pressure from certain powerful states and as a matter of intensely-negotiated compromise, it was agreed in Kampala that the aggression amendments would not be activated before 2017. Nonetheless, the states assembled in Kampala unanimously resolved "to activate the Court's jurisdiction over the crime of aggression as early as possible." We will soon know whether they really meant it.

The member states of the Court will meet at UN headquarters in New York from December 4th to 14th to address making good on the pledge which they made in Kampala. Although 34 nations have already ratified their acceptance of the Court's aggression jurisdiction - including over half of the members of NATO - Britain and France have not. Instead, they have joined with a handful of states, including Japan, Canada, Norway, and Colombia, in tacitly threatening to defeat activation of the Court's aggression jurisdiction by their insistence that the Court must first clarify that the aggression amendments will not apply to leaders of any state that does not independently ratify them. No matter that the express terms of what they all agreed to in Kampala allows every member state the remarkable flexibility of being able to affirmatively opt out of the Court's independent jurisdiction over aggression. If the assurances which are being demanded are exacted from the Assembly of States Parties, the leaders of non-ratifying countries may reasonably look forward to remaining completely beyond the scope of potential prosecution for the crime of aggression - regardless of whether they formally opt out or not, as required by what was agreed in Kampala. By insisting that their leaders are exempt unless they ratify the amendments, the non-ratifiers argue that they do not need to publicly opt out of the Court's jurisdiction - a move which could well be perceived by them as fraught with potential embarrassment.

It is significant that the upcoming decision on aggression is expected to be undertaken pursuant to a consensus resolution. This means that the activation resolution must either be adopted by unanimous approval or not adopted at all. In such circumstances, each member state of the Court has the power to thwart the will of even an overwhelming majority simply by not consenting to the adoption resolution, regardless of the express terms of what was unanimously agreed to in Kampala. The non-ratifying countries which are demanding clarity that their leaders will remain beyond the Court's reach on the crime of aggression, therefore, each have a potentially game-ending card to play in opposition of the final approval. The question is, with the whole world watching, do they dare play it?

There is more at stake here than simply activation of the Court's jurisdiction over the crime of aggression. Some may rightly view the activation decision as a test of the international justice system itself. Powerful countries which espouse the rule of law for others, yet who prefer to cloak themselves in a mantle of impunity for the gravest crime of all, may well be viewed as hypocrites or worse. Those who undermine activation of the Court's aggression jurisdiction no doubt have their reasons for doing so. Some may suspect lucrative arms sales or politically self-interested military alliances as influencing the decision-making process of non-ratifying states.

A negotiated compromise is still possible, but the non-ratifiers who seek assurances shielding their national leaders have thus far been dragging their heels - and for good reason. With time running out, the tactic of delay gives them a distinct advantage: they need only do nothing until time runs out at the upcoming meeting of the Assembly of States Parties. They may then self-contentedly declare "We tried. We really did, but there just wasn't enough time." They need do nothing more than assure that there is no agreement on aggression in order to achieve the result they seek: a non-decision on activation is another way of assuring their national leaders of total impunity for the crime of aggression.

The Kampala amendments represent a plea of law to humanity: they call out for the support of people and nations of goodwill to help protect humanity from a world of continuing lawlessness. Complacency is not far removed from complicity, and those who believe in the rule of law should stand up and be counted. For information on how to contact the governments of select non-ratifying states, please see:

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By Donald M. Ferencz
Convenor, Global Institute for the Prevention of Aggression; Research Associate at the Centre for Criminology of the Oxford University Faculty of Law; Visiting Professor at Middlesex University School of Law, London [Back]

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Crime of Aggression
small logoThis document has been published on 30Nov17 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.