The ICC acquires jurisdiction over
the crime of aggression
On 17 July 2018,
the International Criminal Court (ICC) acquired jurisdiction over the crime of
aggression, an historic development, you might think, which could lead to
individuals responsible for actions similar to the US/UK invasion of Iraq in
2003 being prosecuted by the Court in future.
In reality, the Court’s
jurisdiction over the crime of aggression is very limited – initially, it is
able to prosecute an individual for aggression committed by one of only 35
states, most of them unlikely aggressors, and then only if that state hasn’t
opted out of the Court’s jurisdiction in respect of aggression, which it can do
at any time by a simple declaration.
It’s unlikely that there will ever be any prosecutions.
The Rome Statute
The ICC began
operations on 1 July 2002, the Rome Statute of the Court
having been adopted on 17 July 1998 at an international conference in
Rome. Then, 120 states voted in favour
of the Statute and 7 against (including China, Israel and the US) with 21
abstentions.
Originally, the
Statute defined (in Articles 6, 7
& 8) three offences – genocide,
crimes against humanity and war crimes – for which ICC may be able to prosecute
individuals.
But, absent a
referral by the Security Council (of which more later), the Court has no authority
to prosecute unless a state grants it that authority by becoming a state party
to the Statute. Then, the Court can
prosecute individuals for these offences committed
(a)
in that state’s territory by any individual, and
(b)
by nationals of that state anywhere in the world
(unless
the case is already being prosecuted under domestic law).
Under (a), the ICC
prosecutor has been able to investigate possible war crimes committed by US service
personnel in Afghanistan, which is a party to the Statute, even though the US
is not (and even though it is US policy to
prevent the ICC trying any US nationals).
Under (b), the ICC
prosecutor has been able to investigate possible war crimes committed by British service personnel in Iraq (for example, killing or
abusing civilians) even though Iraq is not a party to the Statute.
Under Article 12(3)
of the Statute, a state may also make a declaration accepting the jurisdiction
of the Court without becoming a party to the Statute.
Today, 123 states
are parties to the Statute, including Ireland, the UK and every other state in
the EU, but around seventy in the world are not, including the US, Russia,
China and Israel (see here).
The crime of aggression
From the outset, it
was intended that the Rome Statute would include a fourth offence – the crime
of aggression – but agreement to do so wasn’t reached at the original
conference in Rome in 1998. However, in June
2010 a definition of the crime itself, and a
procedure for prosecuting it, was agreed at a Review Conference of the state
parties to the Statute in Kampala.
The Rome Statute (Article 8 bis) now defines the crime of aggression
as:
“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”
where “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”.
Examples of such acts include:
1. “The invasion or attack by the armed forces of
a State of the territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any annexation by the use
of force of the territory of another State or part thereof;”
2. “Bombardment by the armed forces of a State
against the territory of another State or the use of any weapons by a State
against the territory of another State;”
3. “The blockade of the ports or coasts of a
State by the armed forces of another State;”
4. “An attack by the armed forces of a State on
the land, sea or air forces, or marine and air fleets of another State;”
So, armed action against another state such as
the US/UK invasion of Iraq in March 2003 amounts to aggression as defined in
the amended Statute (under 1 above), as does the US/UK/France bombing of Syria
on 14 April 2018 (under 2). It also
appears that the following Israeli actions constitute aggression:
Who can the ICC prosecute for the crime of aggression?
ICC’s jurisdiction over the crime of aggression is very limited, for a
variety of reasons, as we will see.
First, absent a
Security Council referral (of which more later), the Court can only exercise
jurisdiction over the crime of aggression if the alleged aggressor and the
victim of the aggression are both state parties to the Statute. This is made clear in Article 15 bis (5),
which states:
“In respect of a State that is not a party to this Statute, the Court
shall not exercise its jurisdiction over the crime of aggression when committed
by that State’s nationals or on its territory.”
In other words, the
Court cannot prosecute
(a)
when the alleged aggressor is not a party to the Statute, or
(b)
when the alleged aggression takes place on the territory of a state
that is not a party to the Statute.
Second, at any time
a state that is a party to the Statute can
declare that it doesn’t accept the jurisdiction of the Court in respect of the
crime of aggression. Article 15 bis (4) of the Statute says:
“The Court may … 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.”
So, a state contemplating military action against
another state can insure its leaders against being prosecuted for the crime of
aggression by making such a declaration in advance.
Third, the Court’s
jurisdiction over the crime of aggression is restricted to those states that
have formally accepted the aggression amendments to the Statute adopted at Kampala
in 2010. This severe restriction was
agreed by the Assembly of State Parties at its meeting last December when it
activated the crime of aggression (see below).
At that time, only 35 out of the 123 state parties to the Statute had ratified or accepted
the aggression amendments. These are:
Andorra,
Argentina, Austria, Belgium, Botswana, Chile, Costa Rica, Croatia, Cyprus,
Czech Republic, El Salvador, Estonia, Finland, Georgia, Germany, Iceland,
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Panama,
Poland, Portugal, Samoa, San Marino, Slovakia, Slovenia, Spain, State of
Palestine, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and
Tobago, Uruguay
Very few of these states are likely to commit
aggression. More likely aggressors, such
as the UK and France, both of which are parties to the Statute, are noticeable
by their absence.
(Ten of the twenty-eight states of the EU,
including the UK and Ireland, have not accepted or ratified the aggression
amendments. This is surprising given the
EU’s consistent support for the ICC and its policy of promoting the extension
of its jurisdiction to every state on earth.
This was formally established by EU Council decision 2011/168/CFSP of 21 March 2011, which states that “the
Union is convinced that universal accession to the Rome Statute is essential
for the full effectiveness of the ICC”.
The decision committed the EU and its member states to “make every
effort to further this process by raising the issue of the widest possible
ratification, acceptance, approval or accession to the Rome Statute and the
implementation of the Rome Statute in negotiations”. The EU seems to have abandoned this policy
now that the Statute includes the crime of aggression.)
Assembly of State
Parties in December 2017
The Kampala Review Conference agreed that the
Court would be able to exercise jurisdiction over the crime of aggression after
1 January 2017, providing
(a) 30 state parties had ratified or accepted the Kampala
amendments and
(b) the Assembly of State Parties had voted to
activate the crime by a two-thirds majority at least.
On 29 June 2016, the ICC announced
that Palestine had become the thirtieth state to have ratified the
amendments. This paved the way for the
activation to take place at a meeting of the Assembly of State Parties in
December 2017.
Prior to this meeting, a number of state
parties, with the UK and France in the van, argued that the Court should not be
able to exercise jurisdiction over nationals of a state or on the territory of
a state with respect to the crime of aggression unless that state had accepted
the aggression amendments (see Annex II here for paper to
that effect by Canada, Colombia, France, Japan, Norway and the UK).
After considerable argument, the Assembly of
State Parties accepted this principle and it was incorporated into the resolution
activating the Court’s jurisdiction over the crime of aggression (beginning on
17 July 2018). The resolution, which was
passed by consensus, confirmed
“that the amendments to
the Statute regarding the crime of aggression adopted at the Kampala Review Conference
enter into force for those States Parties which have accepted the amendments
one year after the deposit of their instruments of ratification or acceptance” and
“that
the Court shall not exercise its jurisdiction regarding a crime of aggression
when committed by a national or on the territory of a State Party that has not
ratified or accepted these amendments”
The introduction of this principle means that,
at present, only 35 of the 123 state parties are subject to the jurisdiction of
the Court with respect to the crime of aggression. Furthermore, as we have seen, any or all of
these 35 can refuse to accept the jurisdiction of the Court with respect to the
crime of aggression at any time by simply lodging a declaration to that effect
with the Registrar.
If the present circumstances had existed in
March 2003, it would not have been possible for the Court to prosecute any
individual for the US/UK aggression against Iraq, first and foremost because
Iraq is not a state party to the Statute.
And even if it had been a party, no US national could have been prosecuted
because the US is not a party to the Statute and neither could a UK national
because the UK has not ratified the aggression amendments.
Deferral by the Security Council
The ICC likes to portray
itself as an international judicial body, whose actions are free from political
interference. This is simply untrue
since the Security Council has a significant role in its operations.
First, the Security
Council can defer an investigation or prosecution. This power is enshrined in Article 16 of the
Statute, which says:
“No investigation or prosecution may be
commenced or proceeded with under this Statute for a period of 12 months after
the Security Council, in a resolution adopted under Chapter VII of the Charter
of the United Nations, has requested the Court to that effect; that request may
be renewed by the Council under the same conditions.”
Theoretically,
therefore, this allows the Security Council to defer an investigation or
prosecution indefinitely. However, it is
unlikely that a deferral resolution would pass even once, since it needs at
least nine Council members to vote in favour and none of the five permanent
members to vote against and thereby veto the resolution. To the best of my knowledge, this power has
never been exercised.
Referral by the Security Council
The Security Council can
impose Court’s jurisdiction on states that have chosen to reject it by refusing
to become a party to the Statute. This
is provided for in Article 13 of the Statute, which states that the Court may
exercise its jurisdiction if:
“A situation in which one or more of such
crimes [that is, war crimes, crimes against humanity, genocide and aggression] appears to have been committed is referred to
the Prosecutor by the Security Council acting under Chapter VII of the Charter
of the United Nations;”
In the light of this, it
is difficult to view the Court as an independent judicial body, the
jurisdiction of which states can choose to reject, as many states in the
world, including the US, Russia, China and Israel, have done. On the contrary, its jurisdiction can
be extended by the Security Council to states that have chosen to reject its
jurisdiction, a body which, it is worth noting, includes members who themselves
have rejected its jurisdiction.
Of course, this cannot
happen to veto-wielding members of the Security Council, who have chosen not to
become a party to the Statute – since they can block an attempt by the Security
Council to extend the Court’s jurisdiction to their territory. So, China,
Russia and the US, which have chosen not to become parties to the Statute, will
never have ICC jurisdiction extended to their territories. And neither will Israel, since the US can be relied upon to use its
veto to block it.
An international court
with universal jurisdiction is fair (but impossible to achieve in the world as
it is today). An international court, the jurisdiction of which states
can choose to accept, has a semblance of fairness. But an international
court, like the ICC, the jurisdiction of which can be extended by the Security
Council to some states that have chosen not to accept its jurisdiction but not
to others, is grossly unfair.
Sudan and Libya
Sudan was the object of
a Security Council referral in March 2005.
Then the Council passed Chapter VII resolution 1593 “to refer the situation in
Darfur since 1 July 2002 to the Prosecutor of the International Criminal
Court”. On that occasion, three states
– Philippines, Russia, Tanzania – which are not parties to the ICC and don’t
accept its jurisdiction voted to impose its jurisdiction on Sudan. That is blatant hypocrisy.
As a result of this
referral, the ICC charged the President of Sudan, Omar Hassan al-Bashir, with
genocide and other Sudanese nationals with lesser charges. None of them have been taken into ICC custody
so that they can tried.
Libya was the object of
Security Council referral on 26 February 2011.
Then the Council passed Chapter VII resolution 1970 “to refer the situation in the Libyan Arab Jamahiriya since 15 February
2011 to the Prosecutor of the International Criminal Court”. Amongst those states who voted for this
referral were 5 states – China, India, Lebanon, Russia and the US – who are not
parties to the ICC and don’t accept its jurisdiction. This is blatant hypocrisy.
As a result of this
referral, Colonel Gaddafi, his son Saif
and his head of security, Abdullah
Al-Senussi, were indicted by the ICC for crimes against humanity. Colonel Gaddafi was killed; Saif, who is
alive and well in Libya, is still being sought for trial by the ICC; and the
ICC consented to Al-Senussi being tried by Libyan courts, which has taken place
and he is now under sentence of death in Libya.
Past investigations
Since
it began functioning in 2002, the ICC has secured only three convictions –
against Germain Katanga, Thomas Lubanga Dyilo and Ahmad Al Faqi Al Mahdi
In all, the Court has issued
indictments against 34 individuals for war crimes and/or crimes against humanity. President Omar Hassan al-Bashir of Sudan was also indicted for genocide. All of those indicted are from Africa. However, only 10 of these have been handed
over to the Court for trial (of which three have been convicted). The rest are either still fugitives or dead.
The
ICC has often been accused of singling out Africa for its prosecutions. It is true that of the ten situations under
investigation by the Court nine are in African countries. The ten, in chronological order of the
investigations beginning, are
Uganda, Democratic Republic of Congo, Darfur, Sudan, Central African Republic, Kenya, Libya, Côte
d’Ivoire,
Mali, Central African Republic II and Georgia
However,
the ICC itself initiated the investigations in only two of these situations
(Kenya and Georgia). Five of them (Uganda,
Democratic Republic of Congo, Central African Republic, Mali and Central
African Republic II) were referred to the ICC by their governments and two
(Darfur, Sudan and Libya) by the Security Council). And Côte d’Ivoire voluntarily accepted the
jurisdiction of the ICC. So, the ICC can
hardly be accused of choosing to prosecute Africans only – in reality, the choosing
was largely done by state governments seeking to prosecute their own nationals.
Preliminary examinations
Preliminary examinations by the Court are
also ongoing with regard to events in Afghanistan,
Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Greece and
Cambodia, and Ukraine.
The purpose of these examinations is
to enable the ICC Prosecutor to decide whether to proceed to a full
investigation, which might eventually lead to the indictment of individuals.
The Palestine investigation presents a
novel challenge for the ICC. There, for
the first time, the ICC Prosecutor will be faced with the possibility of
indicting individuals for actions carried out on behalf of a state, namely
Israel, in the Palestinian territories it has occupied since 1967, a state that
has powerful friends in the world and is sure to move heaven and earth to
resist the prosecution of its agents. Members of Hamas and other Palestinian paramilitary groups may also be
prosecuted.
The ICC Prosecutor accepted
Palestine’s offer of jurisdiction on 1 January 2015 and opened a preliminary examination into the “situation in
Palestine” on 16 January 2015 (see ICC press release, 16 January 2015). Over
three years later this preliminary examination is still going on.
Will individuals eventually be indicted?
Possibly. It is difficult to see
how the ICC Prosecutor can avoid the conclusion that Israelis responsible for
settlement building in the West Bank, including East Jerusalem, are guilty of
war crimes – since, according to Article
8.2(b)(viii) of the Rome Statute, “the transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies” is a war crime. However, even if
individuals are indicted, it’s unlikely that they will ever face trial in The
Hague, since the ICC cannot try people in absentia – and, since Israel is not a
party to the ICC, it has no obligation to hand people over to the ICC for
trial.
David Morrison
July 2018