Walter Dorn’s letter to Canadian Pugwash members, June 16, 2010
Dear Fellow Canadian Pugwashites,
I am eager to share more information with you about this under-reported development in international law: the member states of the International Criminal Court (ICC) have amended its Statute to expand its jurisdiction to include the Crime of Aggression.
Last Friday (11 June 2010), the Review Conference of the Statute of the ICC facilitated this momentous step in the evolution of human society and the rule of law. The Crime of Aggression was defined after years of debate, as were the conditions by which this jurisdiction can be exercised by the Court. For this amendment, NGOs lobbied the 111 ICC member states and the states attending as observers at the Review Conference.
The ICC brings to trial individuals who have committed the most serious crimes of concern to the international community: genocide, crimes against humanity and war crimes. Now aggression has taken its rightful place among the infamous crimes. If I am not mistaken, the crime was last prosecuted in an international courtroom in the 1945-47 Nuremberg trials, when the term used was "crimes against the peace." Many powerful nations were opposed to the ICC having this power. The US, China and Russia, though not members of the Court, were pressing to avoid this result at the Review Conference. They managed to slow down but not to halt this progress.
Most of the provisions of this amendment were similar to those already envisioned in the Rome Statute, including the ability of the Security Council to defer the start of investigations and the ability of a State Party to opt-out of such amendments -- rather unfortunate provisions but necessary ones to get the support for the Statute in the first place and here again with this amendment. The definition of aggression closely followed the 1974 General Assembly definition. Based on violations of the UN Charter, this definition will enhance the credibility of the United Nations.
It will make the system of international law more integral.
The only real disappointment was that the "exercise of jurisdiction" for this crime was subject to a further decision (vote) not to be made before 2017! Still, the ratification process can proceed over the next 6.5+ years.
The ratifications/acceptances from thirty states that are required for entry into force will take some time and other preparations can proceed as the countdown to the presumed 2017 vote continues. The only threat is that those opposing the move could further delay the vote or try to prevent the required 2/3 majority. Both are highly doubtful given the political will that currently exists internationally and which will hopefully grow stronger over time. Some States Parties pushed hard for this huge delay. The US could not vote because it is not an ICC member -- maybe a good thing in this particular case (!) as it considers the addition of the Crime of Aggression to the court's jurisdiction to be premature, and worked actively against this development. Of course, the main US concern is that its nationals and leaders could be prosecuted. This displays little faith in either the legality of its own decision-making or the capability of the ICC to judge fairly on issues of international criminal law. Since the US has expressed support for the ICC in other cases (e.g., for the situation in Darfur by issuing an arrest warrant for Sudanese President Omar Bashir), it is mostly the former that drives the US to try to undermine the development of international criminal law. The Obama administration is less negative than the Bush administration, which "unsigned" the Statute approved by President Bill Clinton in his last days of office.
This kind of individual accountability before international courts for decisions to go to war or commit aggression is so important, even if it applies only to states that accept this jurisdiction. Rather than punish whole nations for acts of aggression, the leaders can be held accountable.
Hopefully, in the future, a mechanism to snatch leaders and bring them to the Court will be developed, though this will need Security Council authorization to prevent it from being an act of aggression in itself! But it is much better to bring to trial a national leader than to wage a war against an entire country.
As with the NPT Review Conference of April, there was a successful consensus after much suspense, though some major states (probably the same ones) prevented larger or quicker steps from being taken.
I am pleased to share this news and commentary with you, having just finished a term as a Visiting Professional in the Immediate Office of the Prosecutor of the ICC (during a sabbatical). I can only say that the Court is a living and struggling manifestation of a great unfolding dream, one which Pugwash also works hard to promote. While progress is slow compared to the urgent need, in the centuries-long search for a world order based on law, this is rapid progress.Thanks for taking the time to read this update from an avid world-order watcher.
Chair, Canadian Pugwash