We have come a long way from Nuremberg, and have miles to go before we sleep

Hope is the engine that drives human endeavour. After some 20 million people were killed in WW1, League of Nations diplomats recognized the need to eliminate war as an instrument of national policy. They advised that future wars of aggression should be punished as an international crime. The common response from powerful states was: “The time is not yet ripe.” An additional 50 million victims perished in WW2. In response, an International Military Tribunal was set up in Nuremberg to try German leaders responsible for crimes against peace (aggression), crimes against humanity, and war crimes. The implementation of slowly emerging principles of international criminal law by distinguished jurists from four victorious powers (the US, the UK, the Soviet Union and France) was an expression of hope that future illegal war-making might be deterred.

The main architect for the trials was Robert M. Jackson, on leave from the US Supreme Court. “It is high time,” he reported to President Harry Truman in 1945, “that we act on the juridical principle that aggressive war-making is illegal and criminal. […] We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” In December 1946, the UN affirmed the Nuremberg principles and judgement. Committees were directed to draft a Code of Crimes Against the Peace and Security of Mankind, including the crime of aggression, and to plan for a permanent international criminal jurisdiction to try offenders. The rule of law, coupled with the humanitarian aspirations articulated in the UN Charter, would, hopefully, lead to a more peaceful and humane world order. That was the hope.

The UN, of course, could not exist in a political vacuum. Promises of universal disarmament and the creation of an international military force were unfulfilled. The five permanent Security Council members, which had borne major burdens of the war, were entrusted with maintaining the peace. Each was granted the right to veto any enforcement measures. It soon appeared that sharp ideological differences divided the Council, whose members seemed primarily concerned with protecting their own powers and interests. Realpolitik was alive and well, and thriving. The veto-wielding powers in the Council proved unable “to save succeeding generations from the scourge of war.” Economic and cultural disparities among an expanding array of new nations exacerbated difficulties in what seemed an ungovernable world.

The 1946 mandate to define the crime of aggression was finally approved by the UN General Assembly, on December 14th, 1974, as Resolution 3314. To achieve consensus, last-minute clauses were inserted to the effect that the definition was only a non-binding guide to the Security Council, which was given wide latitude to determine whether an act of aggression had indeed occurred. It was agreed that “a war of aggression is a crime against international peace,” but exculpatory clauses were added, and the whole package was declared indivisible. In effect, the consensus definition was carefully crafted to preserve the status quo. Nonetheless, it reflected the undying determination and hope of many nations that illegal warfare could – at least to some extent – be curbed by law. It was a first baby step forward.

A code of international crimes was completed in 1996 by the 34-member International Law Commission that favoured the original Nuremberg definition. One hundred eighty-five nations, with varied legal and social systems, formed UN committees to fashion a permanent international criminal tribunal. Hundreds of open questions were left to be resolved during a final four-week conference of plenipotentiaries in Rome in the summer of 1998. In an unforgettable climax, after the official time had expired, Chairman Philippe Kirsch announced that the Rome Statute for an International Criminal Court (ICC) had been approved by acclamation of 120 in favour, seven against and 21 abstentions. The then UN Secretary-General, Kofi Annan, called it “a gift of hope to future generations.”

Until the final session, it was uncertain whether the ICC would be authorized to exercise its jurisdiction over the very contentious crime of aggression. Powerful states were unwilling to give up their power, and states that lacked power could do nothing about it. A last-minute compromise was accepted, where aggression would be listed as one of the four core crimes, although the ICC could not exercise its jurisdiction over that crime until and unless certain specified conditions could be met. There would have to be an acceptable definition, as well as clear confirmation that UN Charter provisions (meaning Security Council rights) would be respected. The Rome Statute was ratified, and went into effect on July 1st, 2002. Special Working Groups of the Assembly of State Parties (ASP) set out to meet the requirements for activating ICC jurisdiction over “the supreme international crime.”

A Special Working Group laboured long and mightily to meet the preconditions laid down at Rome. Progress was made on a revised definition, but agreement on the role of the Security Council was nowhere in sight. When the Review Conference began in Kampala, Uganda, on May 31st, 2010, an improved definition clarified the distinction between the crime of aggression by an individual – which required a manifest violation by a leader – and an act of aggression by a state in violation of UN Charter prohibitions. New hurdles were added by requiring agreement by 30 states, and approval by at least two-thirds of all parties before an amendment would become binding. No one could be tried for aggression until 2017 at the earliest – at which time the ASP would consider the matter further.

The Rome Statute is a voluntary contract in treaty form entered into by consenting states. These states were not obliged to be bound by anything that they did not accept. To reassure nations that did not want to be bound, the amendments adopted in Kampala stipulated that State Parties can elect in advance not to be subject to aggression charges. Those that are not ICC members will automatically be excluded from the Court’s jurisdiction unless the Security Council decrees otherwise. Obviously, these constraints will seriously limit the reach of the ICC over the crime of aggression. As a concession to those who oppose any Security Council involvement, it was also stipulated that, if the Council fails to respond to the Prosecutor’s request for a ruling on aggression “within six months,” the Prosecutor can proceed with an investigation; provided such a course of action is approved by the entire pre-trial panel of at least six judges. Clarification of some of the ‘elements’ of an act of aggression, as well as a few ‘understandings’ were added to encourage the acceptance. When a weary Assembly President, Ambassador Christian Wenaweser, announced, after midnight on the morning of June 12th, 2010, that a consensus had been reached, the applause may have reflected relief that the conference had ended on a positive note, rather than an expression of complete satisfaction by all those present. No one doubted the heroic efforts of the Chairman and Secretariat, but the limited results left much to be desired.

Dwelling on shortcomings is counterproductive. So what to expect for the future? The prevalent paltry excuse that aggression had not been defined has now been eliminated. Giving the ICC jurisdiction over the crime of aggression remains on the political agenda – even if the time frame is imprecise. The arguments against criminalizing military aggression were shown to be lacking in persuasiveness what they made up in profusion. The allegation that the crime of aggression would overburden the Prosecutor was rejected. So too the contention that the Prosecutor – bound to act only on the basis of law, and subject to strict judicial controls – would be politically motivated. That concern seemed particularly ironic coming from the nations that dominate the Security Council. The truth is that powerful nations sought plausible excuses, because it would seem too absurd to argue that they preferred war to law. The world and their own citizens pay dearly in blood and treasure for such short-sighted intransigence. How many millions more must die in uniform or as innocent civilians before the time is ripe to bring criminals before the bar of justice? Allowing aggressors to remain immune from prosecution by the ICC surely does not deter illegal war-making, but rather encourages it.

To be sure, the long historical record of glorifying war causes many doubts about the utility of trying to alter the way that people think about such vital issues. Skepticism may be understandable, but it does not justify inaction. Unavoidable temporary shortcomings should not obscure progress and the need for change. International criminal courts were inconceivable just a short time ago; today, they exist to punish outrageous crimes committed in various parts of the world. Deterrence is more important than punishment. The ICC’s authority to try perpetrators of genocide, crime against humanity and major war crimes – without prior Security Council consent – was left untouched (and hence reconfirmed) in Kampala. Aggression remains in the Statute as a recognized and confirmed international crime. If the Security Council fails to determine whether armed force by a state has violated the UN Charter, then the ICC need wait only six months before it launches its investigation. No one can persuasively repeat the canard that aggression is not punishable simply because it is undefined.

True, the ICC must wait until after 2017 before it can again consider including aggression within its active jurisdiction, but this time may be used constructively on other fronts. The powerful ‘court of public opinion’ should be heard. Many states have already recognized that armed might in the nuclear-cyberspace age, may be not only genocidal, but also suicidal. Hopefully, countries, in ever-increasing numbers, will ratify the Kampala amendments on aggression, and enact domestic legislation making aggressive war a punishable crime over which they have priority jurisdiction. As the national nets criminalizing aggression spread, aggressive states may have to rethink their willingness to attack their neighbours. They may yet look to the ICC as a more trustworthy body to decide the fate of individual aggressors. It will be up to today’s youth and tomorrow’s visionaries to propagate and hold high the banner of truth that law is always better than war. It is a message that many leaders have yet to learn.

Benjamin B. Ferencz (www.benferencz.org) was a prosecutor at the Nuremberg war crimes trials, and has been a lifetime advocate of the international rule of law and the establishment of an International Criminal Court.
(Peace Poster: Luba Lukova)