As promised, here is my response to last week’s post on the crime of aggression. I had intended to have it ready earlier, but the dramatic events of last week (see here, here and here) have kept me occupied. I should note that this isn’t my area of expertise and welcome any comments from readers.
The Crime of Aggression: Why (Not) Care?
In his reflections on the definition of the crime of aggression, agreed to at the ICC’s Kampala Review Conference, legal scholar William Schabas concluded:
“Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come.”
Yet, as Teddy suggests, there is something of a winter sleep over the subject and the silence is rather perplexing. It could simply be that, given that this category of crime only becomes operational in 2017, there’s just no rush to talk about it. It is not as if the events of the past year haven’t provided observers with enough to talk, argue and write about. And, as for international criminal lawyers, they’re no doubt busy with other things at the moment!
In his post, however, Teddy suggests that there is something altogether more pervasive that has stunted interest in the crime of aggression:
“I have become increasingly convinced that this is because those who work in or around the Court on a regular basis tend to see the core mission of the ICC as fitting in with a human rights agenda and don’t know how to deal with the crime of aggression.”
Is it possible that the focus on human rights in international criminal justice causes those interested in the ICC to ignore the crime of aggression? My short answer is yes, it is possible. A case could be made that the crime of aggression is ignored because of the narrow focus of human rights on the individual, more generally, and individual responsibility in particular.
Underpinning the human rights regime and the development of international criminal justice has been a myopic focus on the individual. I have previously argued that this is the result of the rise of liberal cosmopolitanism: the belief that all individual humans form part of a global community with the same basic and inalienable rights.
In this context, the crime of aggression sits uncomfortably between individual and collective state accountability. If we accept this to be true, it would be possible to argue that the focus of the human rights regime and the ICC on the individual makes it difficult for human rights and international criminal justice advocates to “deal” with the crime of aggression – a crime that is perpetrated by states and not individuals.
However, it seems unlikely that human rights or international criminal justice advocates would have a problem pursuing individual accountability for crimes that are, to a significant extent, collective in nature. Despite some criticism from scholars, the international criminal justice project has not hesitated to attribute individual responsibility to crimes that are very collective.
My longer answer, however, as to why the crime of aggression has not received much attention since its codification is because, as it stands, its potential to “revolutionize” the conduct of aggressive war is minimal at best, and hypocritical at worst.
While many celebrate the fact that states have agreed to a definition of the crime of aggression, it was rather telling that, in reaction to the agreement, Christian Wenaweser, president of the assembly of state parties of the International Criminal Court didn’t exactly sound ecstatic:
“Two weeks ago I didn’t necessarily expect that we would be able to find a solution that dealt with all aspects of the crime of aggression, so yes it is a bit more than I initially hoped for.”
A bit more than nothing isn’t much at all. Few captured the skepticism towards this new crime under the ICC’s jurisdiction better than Kevin Jon Heller, with his characteristic aplomb:
“the conditions governing the exercise of jurisdiction make it very unlikely that any significant act of aggression will ever be prosecuted.”
The head of the Japanese delegation, Ichiro Komatsu, similarly declared his frustration by stating that the definition:
“unjustifiably solidifies blanket and automatic impunity of non-state parties.”
The biggest source of skepticism derives from the fact that ICC member states can opt out of the Court’s jurisdiction over aggressive war. And this for a Court whose project is to prosecute crimes universally! Just for a moment, imagine the corollary for war crimes, genocide or crimes against humanity. A state signs up to the ICC but then, in preparation for atrocities, says: “we’d like to opt-out this time.” Really, it begs the question: what’s the point of having a category of crime which can only cover those states who are least likely to commit it?
Kevin’s post from last year addresses the key problems that arise because of this opt-out clause. None seems more important than the fact that the crime of aggression
“permits States Parties to take a completely hypocritical approach to aggression. As the chart indicates, a State Party that opts out of aggression cannot be prosecuted if it commits an act of aggression against a State Party that has not opted out. But the converse is not true: States Parties that have not opted out could be prosecuted for acts of aggression against an opting-out State Party. An opting-out State Party is thus protected against aggression by other States Parties but is permitted to commit acts of aggression itself, even against States Parties that have not opted out. If anyone can think of a principled rationale for such asymmetry, let me know.”
Now, as Joanna Harrington has argued, there may be virtue in patience when it comes to the crime of aggression:
“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.”
Indeed, the crime of aggression may become powerfully relevant in the coming years. This post isn’t a prediction of its future utility but an attempt to understand why the crime of aggression has seemingly been ignored despite its intrinsic potential to “revolutionize” international law. My rather rudimentary answer is this: because it may not amount to anything, even when it comes into force in 2017. Worse yet, it could become a source of obvious hypocrisy in a field – international law – that strives to be neutral, even-handed and independent.