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October 25, 2012

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Crime of Aggression

Crime of Aggression: Who are we Kidding?

Written by Ronald Rogo, rogo.ronald@gmail.com

Although the waging of aggressive war was once described as “the supreme international crime, , differing only from other war crimes in that it contains within itself the accumulated evil of the whole”[1], the treatment of the crime of aggression by the international community barely reflects this primacy. for years there has been little disguise of the lack of enthusiasm by the international community towards this offence.

First, while the other international crimes immediately came into effect with the Rome Statute[2], the crime of aggression is currently not enforceable[3]. Initially the reason was that there was no definition of the offence[4] or explicit averment on the jurisdiction of the ICC[5]. While the Kampala Review Conference[6] was finally able to nail down a definition for the crime of aggression, it took away with the other hand. The world still has to wait until 2017 for a second review conference in order for the State Parties to finally determine whether or not they really want to keep this offence. Essentially this means that the world will have to wait until then to decide whether or not prosecuting the “supreme international crime” is worth the effort! Viewed from the prism of domestic law making this is certainly NOT the way to make law[7]. Meanwhile, state leaders can continue bombing each other to extinction without fear of any repercussions for such actions (so long, of course, as they keep away from the other international crimes).

But even after the ICC starts exercising jurisdiction over the ICC the situation does not get rosier. The amendments in the Kampala review conference provided that state parties can elect whether or not to be bound by the provisions relating to the crime of aggression[8]. This is akin to telling a kleptomaniac to choose whether or not he wants to follow laws forbidding theft! As Kevin Heller stated of course it is to be expected that the aggressor states will all elect not to be bound by these provisions on the crime of aggression[9]. The states that actually choose to be bound by them will be the ones least likely to engage in acts of aggression. So, in effect, we would end up with a statute that could be analyzed to extinction in the academic halls (and, might I add, blogs on ICL) but with little practical effect.

Perhaps the main reason why there have been so many barriers in the implementation of the crime is because, unlike the other offences, it targets state leaders. State leaders, no matter what they say, want  the liberty to bombard other states in order to pursue their “national interests”. So then the question remains: if our leaders do not want to be tied down by the rigours of the law why should the citizenry?  Lastly, since crimes against humanity and war crimes are common during wars it is unlikely that we would stamp these out unless we deal firmly with part of the underlying cause: acts of aggression. Our determination “to put an end to impunity…and contribute for the prevention of these crimes”[10] will remain a mere wish list.

[1] The International Military Tribunal

[2] These are the crimes of genocide, war crimes and crimes against humanity

[3] Whereas the Rome Statute provided for the crime of aggression, the jurisdiction of the ICC over the crime and its definition had been left out.

[4] This uncertainty was surprising especially as the United Nations Resolution No. 3314 of 1974 had earlier defined aggression to include “armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one’s own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression”. While this was not a strict legal definition, it reflected consensus on the general definition and elements of the offence.

[5] See Article 5.2 of the Rome Statute

[6] Review Conference of the Rome Statute held in Kampala, Uganda in 2010

[7]  I state this cautiously while acknowledging that international law making is different from enacting domestic laws. However, the fundamental principles are the same, more so deciding whether or not you want a particular law and its purpose.

[8] Article 15 bis provides as follows: The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.

[10] Preamble of the Rome Statute

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October 12, 2012

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Crime of Aggression, International Criminal Court, Rome Statute, UN Charter

Reaching Mutual Consensus: ICC, ICJ and the Crime of Aggression

Written by Jan Guardian

International Criminal CourtNone should underestimate the significance of the outcome of the first Review Conference on the Rome Statute of the International Criminal Court (hereinafter ICC),[1] namely, the adoption of a resolution[2] amending the Rome Statute that includes a definition of the crime of aggression[3] and the conditions under which the Court, in the future, could exercise jurisdiction with respect to the crime.[4] Whereas the definition of the crime of aggression is rather clear and was laid down a while ago by the Special Working Group on the Crime of Aggression,[5] and the preconditions for the exercise of the jurisdiction over the crime by the ICC raise minor concerns, if any at all, there are still some ambiguities in respect to the hypothetical possibility of the ICC and the International Court of Justice (hereinafter ICJ) reaching different conclusions in their decisions regarding the unlawful use of force and, thus, establishing either the presence or the absence of an act of aggression.

Given that the ICC is fully seized with the crime of aggression in any particular situation and that by the time the ICC proceeds to a verdict on a prosecution for the crime of aggression the Security Council has likely already made any conflicting decision possible,[6] the ICC judges are authorized to make their own determinations on aggression, since such, made by an organ outside the ICC “shall be without prejudice to the Court’s own findings” under the Rome Statute.[7] Hence, if the case is subject to simultaneous consideration by the ICC and the ICJ, there is ample risk that this will amount to inconsistent decisions.

The classic example of a similar decisional inconsistency between the judicial bodies of the international legal order is that of the ICJ and the International Criminal Tribunal for the former Yugoslavia in Nicaragua[8] and Tadić[9]cases, largely referred to in the legal literature as one of the inconsistencies leading to the fragmentation of international law.[10] The consequence of such an occurrence in the cases brought before the ICJ and the ICC appears to be particularly problematic given the highly-charged political atmosphere in which the ICC has been operating during the years, its fragile credibility and a lack of a proper institutional hierarchy within the international legal system.[11] Yet, the point is not to take a stand in favor of either of the two bodies, but rather to create a functional and logical system that would eliminate any discrepancies at an early stage of the proceedings in the case of aggression, which is deemed to be especially important in the light of the tensions between the states concerned.

A reasonable suggestion would, thus, be for the ICC to request the General Assembly to seek an advisory opinion from the ICJ pursuant to Article 96(a) of the United Nations Charter (hereinafter UN Charter)[12] and Article 65(1) of the ICJ Statute,[13] or to be so authorized by the General Assembly to request such an opinion proprio motu at any time pursuant to Article 96(b) of the UN Charter[14] as to enable the ICC to use the findings of the ICJ and for such a request to be a precondition for the exercise of the jurisdiction by the ICC.

It is worth mentioning, that this option was included in the Discussion Paper proposed by the Coordinator of the Preparatory Commission for the ICC[15] but was somehow dismissed later on. One of the main arguments against this option was that “because the determination of the existence of an act of aggression is a matter that affects the responsibility of a particular State that it is inappropriate as a subject of a request for an advisory opinion.”[16] However, this is quite arguable in the light of the fact that (1) the issue of an advisory opinion does not trigger state responsibility per se, and that (2) the interstate dispute at stake and subsequent determination of state responsibility will only be subject of consideration of the same judicial body that issued the advisory opinion, namely the ICJ, which is well-known for its consistency. Therefore, the request of the advisory opinion of the ICJ by the ICC in cases concerning the crime of aggression seems to be a logical choice, but the question whether, if at all, this scheme will be put into operation remains.

 

[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.unhcr.org/refworld/docid/3ae6b3a84.html [accessed 12 October 2012].

[2]       Rev. Conf. of the Rome Statute, 13th plenary meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 (advance version) (June 16, 2010)[hereinafter RC/Res. 6].

[3]       Ibid., Annex I, art. 8 bis (1).

[4]       Ibid., Annex I, art. 15 bis, 15 ter.

[5]       David Scheffer, States Parties Approve New Crimes for International Criminal Court. ASIL Insights, Vol. 14, Issue 16, June 22, 2010, p. 5.

[6]       Mark Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?. IND. INT’L & COMP. L. REV., Vol. 16, Issue 1 (2005), p. 33.

[7]       RC/Res. 6, supra note 2, Annex I, art. 15 bis (9), art. 15 ter (4).

[8]       Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986.

[9]       Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999.

[10]     Enzo Cannizzaro, Interconnecting International Jurisdictions: A Contribution from the Genocide Decision of the ICJ. European Journal of Legal Studies, Issue 1 (2007), p. 4.

[11]     International Law Commission, Report of the International Law Commission, 58th session (1 May – 9 June and 3 July – 11 August 2006), 2006, A/CN.4/L.682, para. 51.

[12]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter], art. 96(a).

[13]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 65(1).

[14]     UN Charter, supra note 12, art. 96(b).

[15]     Preparatory Commission for the International Criminal Court, Definition of the crime of aggression and conditions for the exercise of jurisdiction: Discussion paper proposed by the Coordinator, 9th session (8-19 April, 1-12 July 2002), 2002, PCNICC/2002/WGCA/RT.1, para. 4.

[16]     Crime of Aggression: Statement by the United States, September 26, 2001.

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October 8, 2012

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Crime of Aggression, International Criminal Court, Rome Statute

An Assessment of Kampala: Final Comments

 Written by: Professor William Schabas [1]

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.

[1] Written on June 17, 2010, and posted after the close of the Kampala Conference. The original post can be found at: http://iccreviewconference.blogspot.com/. Professor Schabas regular blog can be found at: http://humanrightsdoctorate.blogspot.com/ 

 William Schabas  is Professor of international law at MiddlesexUniversity in London. He also holds appointments at LeidenUniversity, where he is professor of international criminal law and human rights, the National University of Ireland Galway, where he is emeritus professor of human rights and chairman of the Irish Centre for Human Rights, and the Law Institute of the ChineseAcademy of Social Sciences, where he has the title of honorary professor. He is a member of the RoyalIrishAcademy, an Officer of the Order of Canada, and recipient of several honorary degrees.

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September 29, 2012

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Armed Conflict

Let us Deal with the Source of Conflicts

“If you’re in India, and the Brahmaputra river is being rerouted by the Chinese, you’re not muddling through; lives are being lost…the world will be drawn into a war for resources…I think we’ll see more wars”. This statement by Dambisa Moyo[1] captures the perspective-perhaps pessimistic, others would say realistic-of the types of war that we have been seeing and should expect in future. Increasingly, the argument goes, main causes of conflict would not be ideological differences, different religious views or identity differences but rather who gets to control which particular portion of the available natural resources. As the Chinese economy continues on its exponential growth trajectory and we continue to deplete the remaining natural resources one would expect that the pressure and competition for the few remaining resources would increase by the day. Eventually this would determine the livelihood of entire populations. When this happens then it would not matter the type or size of stick that international criminal law holds over the warring parties[2].

We can see snippets of this today. The first judgment was recently determined by the International Criminal Court and the perpetrator sentenced to fourteen years imprisonment[3].  However, in spite of this the conflict in the Democratic Republic of Congo is far from resolved. Possibly, the world’s richest country in natural resources[4], the conflict in the Congo had at one time sucked in several neighbouring nations. The pull of and supposed need to control these resources far outweighs any consideration on the “big stick” that the ICC or any other international body carry. We all held our breath as Southern Sudan and Sudan amassed troops towards their common border in what would have been another full scale war. While the original war when Southern Sudan was part of the bigger Sudan had elements of religion and race involved, this would have been a fight for control of the oil fields along the common border. Keep in mind that the ICC still has unexecuted warrants of arrest over Al Bashir, the Sudanese President. Reason? The allure of the oil outweighs the risk of more indictments on any of the parties. Lastly, Kenya recently experienced clashes along its coastal region, even as the ICC prepares to determine cases involving four prominent politicians[5]. The possible involvement of more politicians on the massacre possibly indicates the contempt with which they hold the ICC. Perhaps they feel the ICC has a big bark but no bite. Perhaps the ICC never features in their calculations. Or maybe, yet again, the control of resources is perceived to be a matter of life and death and the ICC can just go jump in the pool. One could go on and on- about Libya, about Iraq, about Afghanistan and other resource rich nations.

The lesson? International criminal law and fear of retribution, by itself, is not enough to prevent people from fighting for resources. When people feel that their own lives are at stake they will take any steps-even committing international crimes-to extinguish the threat. Everyone has an innate need to be heard especially in the allocation of resources. When their views are ignored, as is often the case, conflict results. Is it not then time for the international community to examine how sharing of resources can be conducted in an equitable manner. Not after the fact-when the war drums are being beaten-but immediately after the resources have been discovered. For example, Uganda has discovered oil and gas. We know-from history-what will likely happen if any of the local communities feel aggrieved in the wealth distribution process: more work for the ICC. So does it not make sense for the international community to “poke its nose” into Uganda’s affairs right now, albeit in a subtle way.  This rather than having a court with international jurisdiction is perhaps the better way “to put an end to impunity…and thus to contribute to the prevention of these crimes”[6] After all, “it is the whole political economy of southern resource rich countries and their relations with the north that needs to change if inequalities and recurring conflicts are to be avoided”[7].

(by Ronald Rogo. He lives and works in Nairobi, Kenya. rogo.ronald@gmail.com )

[1] Dambisa Moyo, from Zambia, is an international economist and author. She has authored Dead Aid: Why Aid is Not Working and How There is a Better Way For Africa among others.

[2] There is also the converse argument that an abundance of resources allows for the emergence of warlords able to sustain wars independent of the state’s largesse.

[3] Prosecutor vs Lubanga. Mr Lubanga was convicted and sentenced for conscripting child soldiers into his army

[4] DRC is rich in diamonds, copper, cobalt and lush natural forests. It is easy to see why each country wants a portion of these resources but sad to realize the effect on the citizenry who have not enjoyed this “blessed curse”

[5] Prosecutor vs William ruto and Joshua Sang- (Kenya 1 Case)and Prosecutor vs Uhuru Kenyatta and Francis Muthaura (Kenya II case)

[6] Preamble of the Rome Statute of the International Criminal court

[7] The political economy of resource wars by Philippe Le Billon at p. 40

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September 22, 2012

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Organized Crime

Prosecuting Pillage of Natural Resources

Written by Garima Tiwari

     Greed more than grievances inspires many of today’s conflicts.[i]

Congo

@Eric Feferberg/AFP/Getty Images

This post would give a brief insight into one of the broadest and most frequently cited provision in relation to illegal exploitation of natural resources in both international as well as non-international armed conflicts- War Crime of Pillage.

Since the end of the Cold War, the illegal exploitation of natural resources has become a prevalent means of financing some of the most brutal hostilities and conflicts. In countries including Angola, the Democratic Republic of the Congo, East Timor, Iraq, Liberia, Myanmar, and Sierra Leone, the illicit trade in natural resources has created lucrative incentives for violence. It seems true, that a resource rich country might not be taking the advantage of what it has, but the resources might turn to its disadvantage. The problem of resource curve is evident.

The war crime of pillage, is included in Article 8(2)(b)(xvi) of the Rome Statute for the situation of international armed conflict and in Article 8(2)(e)(v) for the situation of non-international armed conflict. Pillage as included in the Rome Statue is general in scope covering all kinds of property –without any affiliation of the owner of the property to a party to an armed conflict. But the catch situation here is that the property should be taken for ‘personal’ or ‘private’ use, leading to an open space for justifying pillage when done to fund a conflict. The provision addresses both combatants and civilians.[ii] It is also worth noting that the war crime of pillage covers both individual acts committed without the consent of the military authorities and organized forms of pillage.[iii]

It was the Nuremberg Trials which opened the doors to a broader and liberal understanding of pillage, relevant for the international criminal law, to include a systematic plunder and exploitation of the resources of a country by occupying power.  This went beyond the traditional view of theft by war soldiers or civilians.[iv]

The Special Court for Sierra Leone  specifically dealt with a so called resource-driven conflict.[v] Yet, charges included in the CDF, AFRC and RUF indictments did not regard illegal resource extraction but charged merely in relation to burning of houses and property. It is no wonder the charges were dismissed. In the RUF case, the Trial Chamber held that, since the indictment did not allege that the pillage of civilian property included the diamond resources of Sierra Leone, it could not consider the criminality of such acts in Kono District .[vi] As a consequence, the famous Taylor indictment did not even refer to the diamonds![vii]

International Criminal Court (ICC) included pillage in indictments against Katanga en Mathieu Ngudjolo Chui (DRC), Jean-Pierre Bemba (CAR), Joseph Kony (Uganda) and all indictments pertaining to the situation in Darfur.[viii] Most of the charges deal with looting village and camps but nowhere is the accused charged with crimes directly related to the exploitation activities.

ICC might be adopting the traditional stand here, but it is understandable given the definition of pillage which makes it outside the scope of ICC to address those actors specifically government actors who exploit natural resources to fund armed conflicts. Some suggest charging with corruption in such situations might be more suitable.[ix]

Thus, the issue of pillage grasps for broader interpretation and application. We need to wait and see , how ICC develops the crime of pillage to deal with the very apparent problem of ‘resource curse’ .

[i] P. Collier and A. Hoeffler, Greed and Grievance in Civil War, accessed at www.csae.ox.ac.uk/workingpapers.pdfs/2002- 01text.pdf

[ii] O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Baden-Baden: Nomos, 2nd ed., 2008, margin no. 170, p. 409.

[iii] J. Pictet and O.M. Uhler, The Geneva Conventions of 12 August 1949: commentary, Part 4 on Geneva Convention relative to the protection of civilian persons in time of war, Geneva: International Committee of the Red Cross (1958), Art. 33

[iv] Trial of the Major War Criminals Before the International Military Tribunal, Official Documents, Volume I, Nuremberg (1947), p. 239.

[v] D. Keen, Conflict and collusion in Sierra Leone, Palgrave, 2005

[vi] Prosecutor vs. Sesay, Kallon and Gbao (RUF Case), Trial Chamber Judgement of 25 February 2009,Case No. SCSL-04-15-T, para. 1339.

[vii] C. Rose, Troubled indictments at the Special Court for Sierra Leone: the pleading of joint criminal enterprise and sex-based crimes, 7 Journal of International Criminal Justice 2: 353-372 (2009)

[viii] ICC, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al- Rahman Case No. ICC-02/05-01/07

[ix] Van den Herik, Larissa and Dam, Daniëlla, Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation During Armed Conflict (January, 22 2012). Criminal Law Forum, Vol. 22, No. 3, 2011