International Court May Define Aggression as Crime

Originally appeared in New York Times

May 30, 2010

More than 100 nations, contingents of human-rights groups and lawyers from around the globe, will begin a meeting on Monday in Kampala, Uganda, tackling issues that could fundamentally expand the power of international law.

The thorniest question on the agenda, one certain to dominate the conference, is a proposal to give the International Criminal Court in The Hague the power to prosecute the crime of aggression.

If approved, it could open the door to criminal accusations against powerful political and military leaders for attacks the court deems unlawful. Those could range from full-scale invasions to pre-emptive strikes.

The court, the world’s first permanent criminal court, already has a mandate to prosecute three groups of grave crimes: genocide, crimes against humanity and war crimes.

Adding aggression to this list “would be a game-changer in international diplomacy,” said Noah Weisbord, a member of the expert group that has drafted a definition of the crime for the meeting.

Another proposal on the agenda would allow the court to prosecute leaders who use weapons with poison, gases, liquids or bullets that cause unnecessary suffering during domestic conflicts and crowd control by the army or police. These weapons are already forbidden in international conflicts.

Many of the court’s 111 member countries have said that they favor adding the crime of aggression to its mandate. They include Germany and numerous small countries that see the change as a form of legal protection. But others, including Britain and France are opposed, arguing that it would overwhelm the court and trap it in political disputes.

The United States, Russian and China, which cannot vote because they have not joined the court and are in Kampala only as observers, are strongly against expanding the court’s purview and are expected to work hard behind the scenes to postpone any action on the issue. Several diplomats said that those three countries, which along with France and Britain hold United Nations Security Council veto power, do not want to see a court with powers that could weaken the Council’s influence.

The momentum appears to favor adopting some sort of change, but the outcome is far from certain. Adoption would require a majority to agree on a definition of the crime of aggression and the terms under which it could be prosecuted.

Proposals still face many hurdles, with delegates and rights groups lobbying hard on all sides of the issue before the meeting. This is the first conference at which amendments are allowed to the Rome statute that created the court in 1998.

“Many people figure the stakes are very high here from different perspectives,” Richard Dicker, a director of Human Rights Watch, said in a telephone interview from Kampala, where many more delegates and lobbyists than expected had already arrived. “I don’t recall such large and high-level attention ever focused on international justice.”

The meeting comes at a time when other temporary tribunals that have dealt with atrocities in Yugoslavia, Rwanda and Sierra Leone, are winding down. Once they finish their work, the International Criminal Court will be the main permanent authority to deal with large-scale crimes against civilians in cases where national courts are unwilling or unable to prosecute.

Leading up to the meeting, supporters and critics have argued on panels and papers that the court, which opened its doors in 2002 and has started only two trials, should focus on becoming more efficient and on the complex tasks before it, rather than risk getting bogged down so soon in the intensely political issue of aggression.

“Just as one nation’s terrorist is another nation’s freedom fighter, one state’s just war is bound to be another state’s unjust war,” Mr. Weisbord wrote recently in an article explaining some complexities of defining aggression.

The crime of aggression was originally written into the court’s statute, but delegates disagreed on a definition, and the issue was shelved until this conference. Experts who have spent seven years hammering out a draft definition, have purposely left some gray areas to leave room for life-saving operations, like NATO’s intervention in Kosovo.

“The major powers will not agree on a definition of aggression because that would mean taking a clear stand on categories of self-defense, like using force to prevent an attack or even a threat,” said Antonio Cassese, a scholar and judge who has served at two international tribunals. “Recent U.N. documents consider pre-emptive self-defense unlawful, and I agree.”

Harold Koh, the United States State Department legal adviser and a co-chairman of the American delegation in Kampala, told a meeting of international lawyers in Washington this month that “if we accept a definition, we need to fix it,” adding, “it has to take into account the many ways in which force can be lawfully exercised.”

“The British, French, Chinese, Russians all intensely disliked the definition of aggression,” Mr. Koh said, “and they were even more concerned about diluting the power of the Security Council.”

Washington, among others, would insist on having the Security Council decide if aggression took place before any court action. But many delegates want to bypass the Council because, as one delegate, who was not authorized to speak publicly, put it, “giving the Security Council the on-and-off switch would undercut the independence of the court.”

Pacifists are pleading for aggression to be added to the court’s list of crimes, even if the definition is not all-encompassing. Benjamin B. Ferencz, a former prosecutor of Nazi crimes in Nuremberg, and a life-long antiwar campaigner, told Mr. Koh at the Washington meeting: “We are already on the verge of a consensus. Don’t push your luck, let’s not look for trouble, let’s go with it.”

Tags: International Criminal Court

This post is in: Crimes Against Humanity

International Court May Define Aggression as Crime

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