ICC makes waging war a crime

Following the devastation of the second world war, the International Military Tribunal at Nuremburg, established by the Allied Forces to try leading figures of defeated Nazi Germany, described aggressive wars waged against other nations as "[a] supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole".

Some 60 years later, history was made in the early morning hours of Saturday, June 12, 2010 in Kampala, Uganda, the site of the Review Conference of the International Criminal Court (ICC).

For the first time in the war stricken story of mankind, waging aggressive wars has become a prosecutable crime in international law and given precise meaning and teeth before the ICC - this on the strength of an unexpected consensus reached between member states of the Court (or in ICC terminology 'states parties').

The conference in Kampala concluded with the adoption of a resolution that at last defined the crime of aggression listed in Article 5 of the Rome Statute - the Court's founding treaty - using the UN General Assembly Resolution 3314 (XXIX) as a guide.

The resolution, in effect, criminalises the use of force (for example: blockades, invasions, bombardments) against another country in violation of the Charter of the United Nations; giving the Court the power to try future political and military leaders who plan, prepare, initiate or execute illegal wars, and to hold them (individually) criminally responsible for the commission of this new, and long-overdue, international crime.

Equally importantly, the Kampala resolution settled the conditions under which the ICC could exercise jurisdiction over the crime.

No Security Council monopoly

The final text of the agreement reflects a language of compromise - in part, proposed by Canada - needed to appease all sides of the debate on the highly complex and divisive issue of empowering the ICC to prosecute those who wage illegal wars.

It does not take much imagination to guess where the dividing line has traditionally been drawn on this delicate question.

In general, most of the rift has been focused on the level of nexus that should exist between the ICC and the Security Council in the prosecution of the crime.

Thanks partly to the inconsistent track-record of the Security Council and the politically driven exercise of the veto powers of the five permanent members of the Council, most Middle Eastern and African states, and indeed the majority of the Court's states parties, have insisted on limiting the Council's involvement.

The rationale behind this standpoint is nicely captured in the opening address of the Iranian delegation, which was present at the conference in an Observer capacity.

Headed by Jamshid Momtaz, the former president of the UN International Law Commission, Iran aligned its position to that of Egypt's (which coincidentally attended on behalf of the non-aligned movement), and articulated the following:

• It is not legally convenient nor does it serve the cause of justice to tie the functioning of the Court to the decisions of the Security Council and, in a sense, leave the Court at the mercy of the Council. The Security Council is, by nature, a political organ and as such cannot act as a judicial filtering for the Court. The Security Council's practice in the past six decades indicates how dominant the political considerations of the permanent members have been in its decision-making processes. This includes those decisions made under Article 39 of the Charter, in particular the determination of an act of aggression.

Iran while recognising that the primary responsibility for the maintenance of international peace and security under the UN Charter falls on the Security Council, nonetheless adds:

•[This] does not mean, however, that the Security Council can play a determining judicial role for the Court. The prior determination of an act of aggression can facilitate the work of the Court, but the absence of such determination should not handcuff the Court. Otherwise, the raison d'être of the Court, as a judicial body, would be undermined.

It must be said that the anxiety over granting exclusive control to the Security Council is overwhelming shared by human rights NGOs.

Richard Dicker, the director of the international justice programme at Human Rights Watch captures this shared concern in the following statement.

The "ICC as a judicial body must be independent from the political interference of the Security Council that is a political organ that takes decision for political reasons".

On the other side of the debate, the most robust resistance to the activation of the crime has come mostly from the five permanent members of the Security Council.

Benjamin Ferencz, a former prosecutor at Nuremburg, and one of the leading advocates of the crime of aggression suggests this is because: "… the Security Council members do not want to surrender their powers to the ICC."

The permanent five - the UK, US, Russia, China and France - amongst other states argue that the triggering, and certainly, the classification of the Court's jurisdiction over the crime must reside on the exclusive powers granted to the Security Council under Article 39 of the UN Charter.

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