An end to war through a court of law? Perhaps — and in time

I had hoped to write my final post on the ICC Review Conference sooner, but the British Airways strike resulted in a longer, more roundabout route back to Western Canada. Plus there’s the jet lag. (My apologies Julian Ku).

The key issue with respect to the aggression amendments was always going to be the conditions for the exercise of jurisdiction, albeit that mid-way through the Review Conference, the jurisdiction issue merged with an entry into force discussion, resulting in some confusion among delegates at several points during the negotiations, and a final result that merges the two.

The definition task with respect to aggression was a done deal before the Review Conference began, and the United States soon recognized that there was no appetite to reopen the consensus that had been achieved within the Special Working Group on the Crime of Aggression (SWGCA). It is easy to forget that defining an act of aggression was not an easy task. For a state to be accused of an act of aggression carries obvious political costs and the international efforts to define aggression in the 1970s illustrate the difficulties. It is therefore not surprising that the 1974 UN General Assembly definition of the state act of aggression formed the basis for consensus in Kampala on the definition of the individual crime of aggression. Yes, some will argue that this wording is too vague for criminal law purposes, and that key issues remain outstanding – such as whether armed force used to prevent crimes of humanity and genocide should be excluded from the definition. But the realities of the negotiations meant that there was little interest among states parties in reopening this longstanding debate in Kampala. A concession of sorts to the desire for clarity can be found in the inclusion of “understandings” to assist with the future interpretation.

The real battle at the Review Conference was focused on the conditions governing the Court’s exercise of jurisdiction over aggression, on which state delegations were deeply divided. Up until the last day, there was an alternative 1 and an alternative 2 in the proposed text  with regards to filters and there was a genuine debate among many delegates as to the appropriate role of the Security Council vis-à-vis the International Criminal Court. Those in favour of the Security Council filter argued that one could not ignore the fact that the post-WWII system of international relations recognizes a primary role for the Security Council – and its five veto-wielding great powers – in the maintenance of international peace and security. Others, however, emphasized that the Security Council is an inherently political body, dominated by the permanent five (two of which are parties to the Rome Statute; the “P2” of corridor discussions). But there was also an element within the conference, as there is at other international meetings, that was keen to use the aggression negotiations to “stick it” to the more powerful and dilute the Security Council’s near-monopoly on international peace and security.

These divisions remained throughout the Review Conference until the final day. In the end, the option of a Security Council filter was dropped, with the final result from the final day marathon allowing the ICC to exercise jurisdiction over the crime of aggression without the need for prior Security Council authorization. However, this grant of independent jurisdiction is subject to significant caveats. It does not extend to acts of aggression committed on the territory of or by nationals of non-states-parties (unless the Security Council refers the matter to the ICC); it is subject to declarations of non-acceptance by states parties; and it will not come into effect at all until 2017 at the earliest, and even then only if states parties positively decide to activate this new aspect of the Court’s jurisdiction. Delayed entry into force, rather than jurisdiction, became the final twist which, with a few complicated turns arising from opt-in versus opt-out discussions, would allow delegations to meet the bottom lines of their instructions from capital. This also meant that the Kampala amendments on aggression could be adopted by consensus, which is just as well since several delegations had already left for the airport or were on airplanes travelling home.

The aggression amendments are not elegantly drafted but elegance is not the goal at a multilateral negotiation where sharpening the language can in fact unravel the deal. Text must be crafted in a way that allows key delegations to see their needs reflected so that the reports back to capital can claim responsibility for the insertion of this or that phrase, and this or that option. The perfect text from an academic’s point-of-view is not the one that will achieve consensus on the ground. And arguments of legal principle made way for accommodating policy positions and bottom line instructions.

For some, it will undoubtedly seem self-defeating to define the crime of aggression and agree on the modalities for its prosecution only to defer effective entry into force and allow states to opt out of the regime. But it is important to recall that international law, including international criminal law, is a slowly evolving and maturing phenomenon. Instant gratification is not within the culture of international law.

But we have moved forward along a continuum marked by the abortive attempts to prosecute the German Kaiser after WWI for a “supreme offence against international morality”, to Nüremberg’s successful if limited prosecutions of “crimes against peace”, to the eventual establishment of the ICC in 1998 after the Cold War years stymied earlier efforts to establish a system of international criminal justice. From this perspective, and to use an analogy that comes to mind after taking four flights to return home, the caveats and delays built into the Kampala amendments are the last few twists and turns on the final approaches to the destination.

Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may take comfort that it is now simply a matter of time. Others may, however, welcome the delay, viewing the ICC’s jurisdiction with respect to crimes against humanity, war crimes and genocide as of prime importance and a priority for its efforts.

On a personal note, while these blog posts have been posted under one name, they are the result of a team effort, and recognition must be extended to the contributions, efforts and views of Professor John Currie of the University of Ottawa and Professor Valerie Oosterveld of the University of Western Ontario. No one could ask for a better team.