The Crime of Aggression: Why (Not) Care?

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.

(Photo: Getty Images)

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.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Crime of Aggression, Human Rights, International Criminal Court (ICC), Justice. Bookmark the permalink.

2 Responses to The Crime of Aggression: Why (Not) Care?

  1. Patti Maurice says:

    Upfront, a disclaimer: I am no expert on international justice and the ICC. My interest rests in what seems to be an apparent cognitive dissonance operating at the top levels of most international and national institutions, including the ICC. Or perhaps it is even something more malevolent. But at the very least the lack of agreement on the definition of the term “crimes of aggression”, and the resultant sorry excuses for not coming up with a definition, seems to fit what I see as one connection that is fairly clear: the ICC at present is concerned with the injustices occurring in countries such as Uganda and Libya, but are they not ignoring the one country who is at present the most aggressive criminally abroad and at home – the US? And since this country is known worldwide as a superpower, would not their behaviour have a fairly large impact/effect, consciously and unconsciously on the collective and individual will of persons charged with the responsibility of holding accountable those who commit apparent crimes of aggression? I realize that this is putting the problem in fairly simplistic terms, but I believe it is one aspect of a huge problem and something that perhaps too few are considering in the fight for international justice.

    The US has been considered a superpower for decades if not longer. As well, it is no secret that many in Congress and the Senate of that country are millionaires, with not just a few heavily invested in munitions and security companies ($3.5 Billion in arms was recently sold by the US to the United Arab Emeriates and this ‘bit’ of news made very few mainstream media outlets, if any). With the subterfuge and lies over the war in Iraq, the illegal war in both Afghanistan and Iraq commenced by the US, the increasing acts of aggression globally and the escalation of assaults on civil liberties, around the world and in the US, culminating this week with Obama signing the horrendously undemocratic National Defense Authorization Act (NDAA) on New Year’s Day, (when as one law professor writing on the topic suggested, people’s attention would be focused on either the next libation or the theatre of New Year’s Eve and Day), would it be surprising that key players at the ICC may not be all that excited to nail down a definition for the term ‘crimes of aggression’? Solely due to the very certain possibility of hugely ticking off this very same superpower.

    We are just 3 days into the new year, and already things became much more dire not only for Americans but for the rest of the world, with the signing of the NDAA. When an act legally authorizes the detention and even execution without charge or trial of anyone the President or the Military claims is an enemy combatant, even if those persons are US citizens, isn’t it possible to contemplate a connection between the failure of the ICC to agree to a definition of crimes of aggression and the unconstitutional actions of the US in human rights violations, assaults on liberties, and laws that in essence void absolute guarantees in the Constitution of that country? With the NORAD agreement between the US and Canada, which states that American troops may perform their duties as defined by the NORAD Commander and Deputy Commander on Canadian soil, does not the signing of the NDAA pose a serious threat to Canadians? And if the ability to detain without charge or trial any citizen or non-citizen (as does the Patriot Act) and as is authorized in this Act, would this threat not extend then to any living person in the world?

    What the US has done with the NDAA has set a precedence for all those countries to continue with their injustices, with their crimes of aggression, and with their assaults on personal freedoms as well as placing American citizens in the way of extreme harm, even death. How then will any International body be able to hold anyone accountable, much less come up with a definition, for crimes of aggression? I would say nearly impossible and this bodes an ugly and uncertain future for all.

  2. 'Plain Jane' says:

    The problem with Justice not hearing in time is when crime goes as far as to violate International basicenter scholar Humanitarian protections and rights given to all as inalienable rights. When local law fails to discern a federal matter, and states attempt to rise above their executive command mandates we have a serious problem with our populations. Boundaries of law & order need to be reclarified to the public, but also a continual practice of attending diligently to the reoccuring questions and violations call for proper training. Far too many Americans to not pay credence to what it means to uphold freedom. The public do not know their community especially when it is a continual pulse of turn over that needs tending and notice.
    What does it mean to know your own? Well many Americans do not know we have an International presense that is now citizen in our country and millions yet Naturalizing right here within our territories. Not all states share the same views and positions change with the seasons. Too many Americans do not realize that when they do not report dutifully they fail to put into practice before their very own families HOW to course fidelity, and loyalty. Parents, leaders need to MODEL uprightness, and be open about what they believe of course within the prortections of Fellowship and societal organization. For the Corporate America businesses big and small need to be protecgted by entering a corporation, just as individual citizen’s need to join a fellowship. Writers join the wirter’s guild, and Actors and producers enter SAG, as Scientist and the scholars enter their Universities protections. These protections offer mentorship and education to better face the legal questions these very topics press all to face head on.
    I wish Crimes of Aggression were something happening somewhere far away but sad to say sometimes hock theapy awakens folks at home. Why would any nation need a National Guard at home? For the very reason that all societies have been now contending with criminal intelligence by moving behind White Pape crime. Can families contend with global criminals flooding our gates.
    When crime isn’t properly investigated, properly reported, nor properly handled time dwindles, and our nations people grow disenchanted to the degree of complacency. how far can people be trampled when people fail to discern? Circumstances will always come up wether one is prepared or not, how we deal with oddities that present themselves will GIRD our people young and old. We need our young citizenry confident in our societies by facing all that matters them the most. Our people need to KNOW where they stand on the issues and inventory what CAN be done even if it seems small.

    It starts with one simple serve and return on practice. People need not be lead by rummors and fears of federal government when something sovereign leads no matter what.

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