Over at the Kampala Review Conference delegates from aroud the world are in the process of incorporating the international crime of “aggression” into the roster of indictable offences already under the Rome Statute (genocide, war crimes, crimes against humanity). The implications of such an insertion are significant, and in this post I am going to briefly run through the propositions suggested uptil this point.
The proposed text
The Conference has released a Conference Room Paper on the Crime of Aggression (downloadable by clicking on the hyperlink) that basically creates a new category within Article 8 of the Rome Statute. Article 8 as it stands provides for war crimes – these include, as the name suggests, acts committed in situations of international conflict that are deemed unacceptable by the international community – such as wilful killing, torture, unlawful confinement etc. To these, the Conference now wants to add the crime of “aggression” as part II of Article 8.
Article 8 bis
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.
Paragraph 2, which I have edited for brevity’s sake here, contains a list of certain express acts amounting to aggression – notable in this list is “invasion or attack”, “bombardment”, “blockade of ports” and “sending out armed bands or guerrilas”. As is clear, the proposed amendment addresses itself primarily to commanders of troops – heads of government and militaries – of one State exercising aggression against another. Thus the Amendment makes it abundantly clear that the proposed text would not apply to situations of insurgency or armed rebellion.
The amended Elements of the Crime of aggression contains, in addition to the language of Article 8 and the factual knowledge requirement, the following important provision:
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
This means that even after a State party leader is accused of committing a crime of aggression against another State, it is still open for them to argue that such an act was not of a sufficient scale as to constitute a “manifest” violation of the UN Charter. To reduce the scope for ambiguity on this point the Introduction to the EoC mentions that “The term “manifest” is an objective qualification.” However, I cannot find any indiciation to what this objectivity reduces to. But this is not as big a problem as it sounds, since the Introduction mentions by way of qualification that “It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.” One is then naturally given to understand that any of Paragraph 2′s acts would be deemed to be manifest violations of the UN Charter – and Paragraph 2 is a fairly comprehensive list.
Questions of Jurisdiction
Article 39 of the UN Charter says that “The Security Council shall determine the existence of any [...] act of aggression”. Article 5 of the Rome Statute requires its provisions to be consistent with the UN Charter. The question before the Kampala Conference, therefore, is whether the Charter should be read to grant the SC exclusive jurisdiction in determining the existence of aggression – in which case the Court would have to always act only upon the recommendation of the Council – or whether to provide for a way to circumvent the text of Article 39 by overlapping the Court’s and the SC’s jurisdiction in the interests of removing impunity. Two alternatives are therefore deliberated:
1. The Security Council must make a determination of an act of aggression. Failing that, the Prosecutor may not proceed with an investigation (alternative 1)
2. If six months go by without the Security Council making a determination, the Prosecutor may proceed with an investigation (alternative 2).
In support of alternative 1 is also the idea that divergent opinions between the ICC and the Security Council about whether an instance amounts to aggression would undermine the legitimacy of both. This is also a very real charge, for in case this happens, you would require a third arbitrator – with theoretically higher legitimacy- to settle such differences. My own view veers towards including within the meaning of “determination” any finding by the Council, positive or negative, about a particular instance. If more than six months have passed the Council must be deemed to have foregone the right to decide such cases. If however within the six months the Council determines that an act is not one of aggression, the ICC prosecutor should not be able to go ahead – the UN Charter, and one of its constituent bodies, being after all the basis of modern international humanitarian law as also a more democratic process, and therefore enjoying greater legitimacy, than the Pre-Trial Chamber. The only problem with this approach would be that (1) the Elements of Crimes, as indeed the definitions of aggression under the Statute would become largely rhetorical as the SC is free to adopt its own guidelines and not follow the Rome Statute, and (2) questions of aggression, being put to vote, would also be subject to realpolitik, and powerful countries will often be able to get away scot-free. Linking human rights to (often) economic and political affiliations is not a very idyllic scenario.
What course the Conference decides to adopt remains to be seen and can only be ascertained in the coming days.
Questions of Applicability
Lastly lies the question of applicability of the amendment to State Parties who have/not accepted it. The amendment declares prima facie that the victim State is not required to have accepted the amendment for action to be initiated against it aggressor. More sticky is whether the aggressor needs to have accepted the amendment. (Of course the aggressor needs to be a State Party for the Statute to apply to it in the first place). There are two understandings posited at this point: the “positive understanding”, that extends jurisdiction without the aggressor state accepting the amendment, and “negative understanding”, that does not. This again will most likely be the subject matter of fierce deliberation in the next few days.
India and the ICC – are we any closer?
Frankly, I don’t think so. The inclusion of the act of aggression makes it remarkably difficult for us to justifiy our actions against Pakistan (even if you believe “they” are the ones behind all the firing, the Indian Army also routinely carries out bombardment/shelling/firing over the area commonly called PoK). Any sort of retaliatory fire that is not strictly in self-defence would amount to a crime of aggression. Given the very ambigious position of both India and Pakistan over who is committing the aggression in Kashmir and the international community’s viewing of the conflict, I can imagine that India’s ratification of the Statute would immediately focus a lot of – unwanted?- attention upon Kashmir. This would be a great thing if you are a human rights activist, but not so great if you are the Prime Minister or Defence Minister and face the risk of a very public and embarassing trial before the International Criminal Court. For the words ICC to mean anything more than International Cricket Council to millions of Indians has possibly just become a fainter dream.
No related posts.
Related posts brought to you by Yet Another Related Posts Plugin.
Facebook comments:
Powered by Facebook Comments