The Crime of Aggression: An Idle Threat?

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If you’ve watched or read the news today, or anytime in the last 2 years for that matter, you likely know that the Syrian war has had far reaching implications. It has become hard to avoid images of unhappy refugee children and the equally unhappy faces of European political leaders as they deal with the ‘migrant crisis’. In their place, Syria has become host to a collection of angry, armed factions including Kurdish fighters, rebel groups, government forces and Islamic State militants, some of which are from outside of the country and others which undertake their agenda with foreign support. There is really no question then that assistance in the conflict has to come from abroad. With the failure of political assistance, the international community has naturally resorted to military assistance which, it is assumed, will solve the problem this time around. However, the lack of coordination and consensus in the provision of this has resulted in some foreign observers considering the conflict a ‘proxy war’, with Russia and the West facing off in Syria is a situation reminiscent of the old Cold War days. Into this volatile situation, the crime of aggression has been tossed, like a hand grenade amidst the otherwise stale political sledging, because, of course, similar to the Cold War days it seems that the production of propaganda has become the best passive-aggressive way to air grievances.

While the West loves to denounce the actions of Russia and rightly so in this case, considering the bombing of aid convoys and medical facilities, and their support of the Assad regime, which during the initial civil unrest in 2011 had already lost the favor of Syrian citizens, the US and NATO have come under fire by some as undertaking a war of aggression. This claim has to be seen as strictly political, considering there is as of yet no agreed upon international enforcement mechanism for the Crime of Aggression. However, the accusation comes at an interesting time as in mid-2017 the State Parties to the International Criminal Court are due to vote on the body’s jurisdiction over this crime. While some consider Aggression to be part of customary international law, as the ‘act of aggression’ was included in the United Nations Charter in 1945 and ‘war of aggression’ was criminalized by the Nuremberg International Military Tribunal, there has been little consensus on what the crime actually entails. Thus, the Rome Statute which formed the ICC entered into force in 2002 with jurisdiction over Genocide, War Crimes and Crimes Against Humanity but included a legally eloquent placeholder in the form of Article 5(2) for the Crime of Aggression. The definition of the crime and the conditions for jurisdiction over it will be provided by the Kampala amendments which resulted from the 2010 Review Conference on the ICC.  With the fast-approaching one year anniversary since Palestine, the requisite 30th State, deposited its instrument of ratification of these amendments, it may be a good time to consider what is proposed. Accordingly, the Crime of Aggression is:

“The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”

Furthermore, the ICC will be able to apply individual criminal responsibility to a person within the State who is able to exercise its military or political actions and has been involved in the ‘planning, preparation, initiation or execution’ of the Aggression as defined above. However, it may only do so when the act has been a ‘manifest violation’ of the UN Charter, which will in turn be determined by the act’s character, gravity and scale. While the conditions are somewhat vague, they provide the flexibility for ICC determination, thereby making it difficult to ascertain the existence of a Crime of Aggression without the Court. In Syria, it is true that the operations between the US and NATO are occurring without the approval of the Syrian government and without the approval of the United Nations Security Council, and thus there is little legal legitimacy to their actions. However, without the strong ICC determination, whether the actions fulfill the criteria of a ‘manifest violation’ is up for increasingly political debate.

Outside of the Syrian context, the US is concerned that the enforcement of the Crime of Aggression by the ICC will make its allies think twice before engaging in their joint interventions in other nations. While one could argue this would be a good thing, considering the 2003 Iraq War debacle, it is likely the issue will prompt a review of the ability to undertake humanitarian intervention under the proposed amendments prior to the 2017 vote. The concern is justified. The Crime of Aggression, as it is now proposed, could enable victim or perpetrator States to take currently sitting political or military leaders to the ICC. The additional uncertainty over the application of state immunity to this is not reassuring, considering that a fundamental aim of international law is predictability.

One thing that is for certain is that the Crime of Aggression will still be subject to the pesky United Nations Security Council veto. The ability of Russia, China, the US, France or Britain to prevent investigations by the ICC could be expected to prevent, or at the least hinder, any of their friends or allies getting into too much trouble.

At the end of the day, the Crime of Aggression, will be the most State-focused crime under ICC jurisdiction. If it ever crystallizes from vaporous potential-law, it will again reflect the prioritization of sovereignty over human rights, something which the ICC and its State Parties have fought so hard to overcome. The fact of the matter is that the enforcement of this crime has the ability to enable tyrannical governments to decimate their population with impunity, and diminish the limited desire of other States to prevent this. The worst case scenario of this will be more Syria-level disasters. The best case scenario is that the Crime of Aggression is predominantly viewed in terms of the negative impact on human rights caused by military intervention, and balanced with the loss of life and atrocities committed by a regime itself. The expected 2017 vote provides the opportunity for the international community to create greater certainty for States willing to intervene, and the pressure to prevent conflicts such as the one in Syria in their early stages. International law is ultimately a balancing act, and often something horrible can be the impetus for change, maybe this is it? In the meantime, pray for Syria.

 

Amber Sequeira is an International Law and International Relations student at UWA. As a result, she now has a fear of the State and is probably more fond of public transport than anyone should be.

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