Numerous conflicts and killing of hundreds have resulted since the fall of the Berlin Wall in 1989. Reflections over the nature of abusive acts committed during violent conflicts have evolved over the years. The entire enterprise of holding war criminals individually responsible for their actions goes back to the Nuremberg and Tokyo trials after the World War II. Then, in 1993, the conflict in the former Yugoslavia erupted, and War Crimes, Crimes Against Humanity and Genocide in the guise of “ethnic cleansing” once again commanded international attention. In an effort to bring an end to this widespread human suffering, the UN Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia, to hold individuals accountable for those atrocities and, by so doing, deter similar crimes in the future. Although the Nuremberg model did not persist in time, the notions which formed its core, can be found in contemporary International Law. The ‘common design’ and ‘superior responsibility’ doctrines have become firmly established as modes for incurring individual responsibility.
The establishment of the International Criminal Court is a 130 years long hard fought struggle to serve the cause of human rights and human dignity. The first proposal ever to establish such a court was made in 1872 by Gustave Moynier, the then President of the International Committee of the Red Cross (ICRC). The proposal was linked to the 1864 Geneva Convention for the Amelioration Condition of the Wounded in Armies in the field. His opinion was that the convention be complemented by provisions of criminal law enabling state parties to deal with the violations of the Convention. The idea of an International Criminal Court was presented for consideration by Trinidad and Tobago at the 44th Session of the General Assembly in 1989.
However, Prosecution and punishment of international crimes are the inescapable responsibilities of every country. After more than half a century’s efforts, the Rome Statute of the International Criminal Court was signed on 17th July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of the International Criminal Court. On 1st July 2002, this first permanent international criminal judicial organ in history was established at The Hague.[1] This is an important Milestone in the development of International Criminal Law; it will have significant effects in the field of International Law, International Criminal Law and International Relationships. During 2002 internationalized courts continued to develop in four parts of the world: Cambodia, East Timor, Kosovo, Sierra Leone, in addition, wholly national trials of international crimes is taking place in Indonesia.
The Rome Statute recognizes specific roles for the United Nations and the Security Council. In addition, both the General Assembly and the Security Council regularly discusses issues and themes relevant to the mandate and activities of the Court. Effective cooperation with the United Nations is particularly important to the Court. The Relationship Agreement, concluded on 4th October 2004 by the President of the Court and the Secretary-General of the United Nations on behalf of their respective institutions, affirms the independence of the Court while establishing a framework for cooperation. Reality of differing convictions about justice is more accentuated in the international domain.The cumulative development of International Criminal Law from Nuremberg through the ad hoc Tribunals’ jurisprudence to the Rome Statute of the ICC – demonstrates the importance accorded to finding a fair balance when holding individuals responsible for group crimes. International Criminal Law covers the so called ‘Core Crimes’, i.e. Genocide, Crimes Against Humanity, and War Crimes and also addresses the Crime of Aggression, which the International Criminal Court will exercise jurisdiction over only after the State parties agree on the crime’s definitions and pre conditions. However, as a systematic and comprehensive examination of the subject matter demands, the analysis of these crimes is not limited to the approach taken to them in the Rome Statute. When adjudicating International Crimes, domestic courts are faced with a choice between the application of international law or national law. The crimes under the International Criminal Law are mostly of a systematic, large scale and collective character, while domestic criminal law mainly deals with less complex crimes that are normally committed by individuals who can easily be linked to the crime. The main purpose of complementary jurisdiction is to respect the sovereignty of every State. In the Rome Statute of the International Criminal Court, provision is made for the requisite ‘state of mind’ necessary for establishing the offender’s criminal responsibility. By making a certain ‘state of mind’ on the part of the perpetrator a precondition for his or her punishment, the international criminal statute builds on the firm ground of international customary law. There can be no doubt that both the codification and standardization of the mental element, if carried out in a proper and consistent manner, would add to the process of consolidation of international criminal law and push international criminal law closer to becoming fully developed legal order.[2]
Crime of Aggression
It was principally the non-aligned countries who insisted that aggression remain within the jurisdiction of the Court. These States pursued a ‘compromise on the addition of aggression as a generic crime pending the definition of its elements by a preparatory committee or a review conference at a later stage’.[3] The Bureau of the Rome Conference suggested, on 10 July 1998, that, if generally acceptable provisions and definitions were not developed forthwith, aggression would have to be dropped from the Statute.[4]
This provoked much discontent among the delegates, and forced the Bureau to reconsider the matter. Literally on the final day of the conference, agreement was reached that authorizes the Court to exercise jurisdiction over aggression once the crime is defined and its scope designated in a manner consistent with the purposes of the Statute and the ideals of the United Nations. Article 5(1)(d) of the Statute lists ‘the crime of aggression’ as one of four crimes within the jurisdiction of the Court. But it must be read with paragraph (2) of that provision: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.[5]
Prosecutions for ‘crimes against peace’, a more ancient term used to describe the concept of aggression, were undertaken at Nuremberg and Tokyo. During the Rome Conference, both German and Japanese delegations insisted that aggression be included, expressing bewilderment over the fact that it had been an international crime in 1945 – indeed, the supreme international crime, according to the Nuremberg Tribunal – yet seemed to be one of only secondary importance half a century later.[6]
In the early years of the international criminal court project, difficulties in subsequent definition of aggression led to a suspension of the work of the International Law Commission on the Code of Crimes in 1954. A definition was eventually adopted, by the General Assembly in the early 1970s. Nevertheless, the General Assembly resolution was not designed as an instrument of criminal prosecution, although it provides a useful starting point in the question for definition of ‘the crime of aggression’. Because it had been prosecuted successfully at Nuremberg and Tokyo, there can be no doubt that the crime of aggression forms part of customary international law. In 2003, in his opinion to British Prime Minister Tony Blair on the legal issues involved in invading Iraq, Attorney General Goldsmith warned of possible prosecution for the crime of aggression, which he recalled was recognized customary international law and which therefore automatically formed part of the country’s domestic law.[7] The British House of Lords, in R. v. Jones[8], later confirmed that the crime of aggression formed part of customary international law.
Early in the sessions of the Preparatory Commission, a Working Group on aggression was set up, and it met throughout the life of the Commission in an effort to make progress on the matter. Its work was then continued by the Special Working Group on the Crime of Aggression, which was set up under the authority of the Assembly of States Parties, with a view to preparing proposals well ahead of the 2009 Review Conference. The Coordinator of the Working Group issued a paper in 2002 setting out the parameters of the issue, and it has framed the debate since then. The Working Group has held inter-sessional meetings at Princeton University, in the United States, convened by Liechtenstein, as well as regular meetings in conjunction with the annual sessions of the Assembly of States Parties. There are a number of complex issues, including the definitions to be adopted, the role of the United Nations and more particularly the Security Council, and the relevance of other provisions of the Statute concerning issues such as complicity in prosecutions for the crime of aggression.[9]
With respect to the definitions, there are two main schools of thought. One favors a generic text, while the other advocates a specific approach, through the use of an illustrative list as is the formulation in General Assembly Resolution 3314 (XXIX). Those proposing a specific approach argue that a detailed list will be clearer, and respond to imperatives of legal certainty in a manner consistent with the other definitions, set out in Articles 6–8 of the Statute. They contend that this is a requirement of Article 22 of the Statute. The generic approach is said to be more pragmatic, in that it acknowledges the impossibility of capturing all instances to which the crime of aggression might be applied. Some suggest that the answer may lie in a combination of the two, analogous to the definitions of crimes against humanity in Article 7 of the Rome Statute. One proposal would refine the concept of ‘crime of aggression’ by using the term ‘war of aggression’, but the prevailing view seems to be that this is too restrictive.[10]
The reference, in Article 5(2) of the Rome Statute, to the fact that the definition ‘shall be consistent with the relevant provisions of the Charter of the United Nations’ was a ‘carefully constructed phrase’ that was ‘understood as a reference to the role the Council may or should play’. The underlying issue is the fact that Article 39 of the Charter of the United Nations declares that determining situations of aggression is a prerogative of the Security Council: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’. In the final session of the Rome Conference, the British representative said that ‘the United Kingdom interpreted the reference to aggression in article 5 and, in particular, the last sentence of paragraph of that article, which mentioned the Charter of the United Nations, as a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred’.[11]
Leaving the Security Council as the arbiter of situations of aggression implies that the Court can only prosecute aggression once the Council has pronounced on the subject. Such a view seems an incredible encroachment upon the independence of the Court, and would almost certainly mean, for starters, that no permanent member of the Security Council would ever be subject to prosecution for aggression. Moreover, no Court can leave determination of such a central factual issue to what is essentially a political body. As Judge Schwebel of the International Court of Justice noted, a Security Council determination of aggression is not a legal assessment but is based on political considerations. The Security Council is not acting as a court.[12]
Finally, difficult issues arise with respect to the characterization of participation by individuals in the crime of aggression which remains most profoundly a ‘crime of state’. The application of Article 25 of the Rome Statute, which deals with the various dimensions of participation in crimes within the jurisdiction of the Court, seems complex. Other concepts, such as superior responsibility Article 28, seem totally irrelevant in cases of aggression. There is virtual consensus on defining aggression as a ‘leadership crime’, whose scope is confined to persons who ‘exercise control over or direct the political or military action of a State’. This might have the consequence of excluding accomplices, such as powerful allies of a small State that would encourage it to attack another country in what could be little more than a proxy war. For example, the occupation of East Timor by Indonesia in 1974 might readily meet the proposed definitions of aggression. It is widely believed to have been conducted at the instigation of United States President Gerald Ford and Secretary of State Henry Kissinger, who visited Jakarta only hours before the attack and apparently authorized it to proceed.[13]It would be a shame if the Rome Statute excluded similar cases of incitement or abetting of aggression, which are ordinarily punishable with respect to the other crimes within the Court’s jurisdiction. But confining prosecutions to leaders in a general sense, be they those of the State committing the crime or its accomplices, is consistent with existing policy of the Office of the Prosecutor as well as the preliminary case law of the Pre-Trial Chambers on the gravity threshold of admissibility.[14]
A major development that took place in the Kampala Conference was the decision taken to criminalize the use of armed force by one state against another in contravention of the UN Charter. Although it will take effect in 2017, it heralds a major step in making the world a better and more secure place to live. Further efforts must be deployed however, and it will take 30 states to ratify the amendment from now till then, but the consequences will be of seminal importance. The Review Conference defined the crime of aggression as “the use of force that manifestly breaches the UN Charter and includes an invasion, a bombardment, the blockade of ports or coasts of a state by the armed forces of another, an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; or a country allowing another state to use its territory to attack a third nation, without the justification of self-defense or without authorization by the UN Security Council.
If it is to make any difference, the role of the Court and its needs and capabilities will have to become a part of the general policy of States in strengthening or restoring international peace and security. The International Criminal Court should not however be the cynosure of international criminal law. Domestic proceedings have many advantages over international ones, including the benefit for the victims of having the trial in their own country, and local enforcement mechanisms such as police and prison systems; but they may need the legitimacy that an international imprimatur can ensure. The best way forward for international criminal law, in our view, is for there to be a synergy between international and domestic efforts to ensure accountability for international crimes. International assistance for national prosecutions of international crimes will continue and, it is to be hoped, lead to further entrenchment of international criminal law in the area, and may be even globally. There is an urgent need to define in specific the jurisdictional arena of the International Criminal Court and avoid its illusionary effects.
*Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab.
[1] The ICC will not have retroactive jurisdiction and therefore will not apply to crimes committed before 1 July 2002, when the Statute entered into force.
[2] Gerhard Werle, “Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law”, Journal of International Criminal Justice, Oxford University Press, London 2005, p. 56.
[3] Terraviva, 13 July 1998, No. 21, p. 2; UN Press Release L/ROM/16, 13 July 1998.
[4] UN Doc. A/CONF.183/C.1/L.59.
[5] UN Doc. A/CONF.183/C.1/SR.33, para. 17.
[6] Historical Review of Developments Relating to Aggression, UN Doc. PCNICC/2002/SGCA/L.1 and Add.1. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22, paras. 63–71; Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/51/22, vol. I,paras.65–73.
[7] GA Res. 3314, Lyal S. Sunga, “The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5–10)”, European Journal of Crime, Criminal Law and Criminal Justice, 1998, p. 61 at 65.
[8] R. v. Jones 2006 UKHL16.
[9] Discussion paper proposed by the Coordinator, UN Doc. PCNICC/2002/WGCA/RT.1/Rev.2.
[10] Definition of Aggression in the Context of the Statute of the ICC, Annex II.A, Doc. ICC-ASP/4/32
[11] Roy S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results, Kluwer Law International, The Hague, 1999, pp.79–126. Also at p.85. UN Doc. A/CONF.183/SR.9, para. 51.
[12] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, [1986] ICJ Reports 14 at 290.
[13] The Crime of Aggression and Article 25, Paragraph 3, of the Statute, Doc. ICC-ASP/ 4/32, Annex II. B.
[14] Christopher Hitchens, The Trial of Henry Kissinger, Verso Books, New York, 2002, p. 54.