Aggression, the International Criminal Court, and Prospects for Deterrence

    If domestic laws against homicide are any indicator, it seems safe to say that criminalizing international illegal uses of force will certainly not deter all would-be perpetrators of acts of aggression nor the atrocity crimes that accompany them.  Yet on the global stage, the issue isn’t simply one of deterring “bad guys”; it’s also a matter of countries which consider themselves the “good guys” agreeing to bind themselves by the same rules of conduct that they would like to see applied to others. For some – including a number of militarily powerful states – that seems to be a problem.

    At Nuremberg, my father opened the case for the prosecution against the mass murderers of the Einsatzgruppen, stating “[t]he case we present is a plea of humanity to law.” Today, one might say that the tables have turned: the Rome Statute of the International Criminal Court – including its amendments criminalizing aggression – represents a plea of law to humanity. They call out to nations and people of goodwill to use international law – and to agree to be bound by it – to help make good on the goal of saving succeeding generations from the scourge of war.

    It will take more than lip service. Being governed by the rule of law cannot simply be for “the other guy.”  States and leaders which balk at bearing the yoke of legal accountability, preferring to remain outside the scope of potential scrutiny before bodies such as the International Criminal Court, no doubt have their reasons. But they should not be surprised if the purported mantle of legitimacy they wish to claim for themselves is sceptically viewed by many as little more than a thinly-veiled cloak of hypocrisy. The maxim “Equal Justice Under Law,” etched in stone in the portico of the United States Supreme Court building, offers a reminder that for any legal system – whether domestic or international – to be seen as effective and legitimate, it must be inclusive and impartial.

     In the wake of the Second World War, the world community clearly felt that criminalizing offenses against the peace and security of mankind and establishing an international criminal court to try violators was an idea whose time had come. This is precisely why the Nuremberg principles were unanimously affirmed by the U.N. General Assembly in 1947.  That there is still no judicial forum where individuals may be held to account for what Nuremberg dubbed “the supreme international crime” strengthens the hand of those who espouse violent redress of differences because they claim to have no other recourse: the courthouse door is either locked or barred to them, or simply does not exist. Offering an effective legal forum for trying those who violate internationally accepted norms of conduct represents a significant milestone: at the very least, it takes the teeth out of the argument that those who feel themselves aggrieved have no other recourse than taking the law into their own hands.

    When the Kellogg-Briand Pact, the 1928 treaty for the renunciation of war as an instrument of national policy, came up for ratification before the U.S. Senate, it was overwhelmingly approved, by a vote of eighty-five in favour and only one opposed. The lone voice in opposition, John James Blaine, knew that the treaty lacked sanctions and was encumbered by what amounted to reservations, allowing parties to unilaterally determine – without judicial scrutiny – when forced could be used, despite the treaty’s implied promises to the contrary. His criticism of the treaty, in the Senate debates of 1929, included the observation that, weighted down by such reservations, the treaty contained “the fertile soil for all the wars of the future.” Without sanctions for violators, Kellogg Briand left the door wide open for the holocaust that was to follow.

    A week after the Nuremberg judgment was rendered, the U.S. Chief Prosecutor, Robert Jackson, issued a report to then President Truman, declaring that “No one can hereafter deny or fail to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law and law with a sanction,” adding that “these standards by which the Germans have been condemned will be the condemnation of any nation that is faithless to them.” The judgment at Nuremberg offered hope that the world had moved on from the days of Kellogg-Briand, to a firmer footing of personal legal accountability. At long last, no one would be above the law.

    Ratification of the Kampala amendments on aggression will serve to confirm and strengthen the historic legal precedent established at Nuremberg, that those who flaunt the laws of humanity do so at their peril. Anything less is a step in the wrong direction.

The United Nations Charter (UN Charter) was founded on the premise of ridding humanity of the scourge of war and ensuring that international peace and security are preserved for the common good of humanity. One may therefore unequivocally argue that the adoption of the UN Charter is one of the most profound achievements in the last century in the quest of nations to maintain international peace and security; guarantee human rights and uphold the rule of law. While it is true that in the aftermath of the adoption of the UN Charter, the world has continued to witness grave violations of human rights, complete disregard of the rule of law and growing threats to international peace and security, it is equally true that what humanity has achieved through this Charter in the lifespan of its existence cannot be underestimated. Achievements have been witnessed in such crucial areas including; promotion and protection of human rights, accountability for gross violations of human rights and peaceful settlement of disputes among states. Scores of international legal and institutional frameworks have been adopted to further the inherent objectives of the UN Charter. Despite many acknowledged failings and imperfections, the international community has exhibited resilience in using international law to address many of its challenges. 

With the advance of accountability for gross violations of human rights and the creation of international criminal tribunals for this purpose, we have witnessed the birth of the International Criminal Court (ICC) with full powers to try some of the worst crimes that mankind has ever known. The creation of the ICC has heralded in a new era where the international community has accepted the long recognized reality that international peace and security cannot be maintained or guaranteed if some of those who commit the worst atrocities are simply allowed to walk free.

I therefore believe that once the jurisdiction of the ICC over the crime of aggression is fully triggered, this will positively contribute to the efforts of preventing the illegal use of force outside the UN Charter framework. This contribution will be manifested through different facets. For example, ability to wage war will certainly be challenged through the recognition that ICC represents and indeed expresses the international will to reject waging wars which inflict suffering on innocent citizens beyond the confines of territorial boundaries. It will further send a message that waging illegal wars is something that is unacceptable and those who do so will be held to account for such actions under international law.

In conclusion, let me reiterate my belief that, the only way to guarantee international peace and security, respect human rights for our people, uphold rule of law and commit ourselves to settle our differences peacefully, is our enduring commitment to the UN Charter. The universal membership of the United Nations and growing membership of the Rome Statute (and its Kampala Amendments) is a testimony that international law can be a force for good to advance the ideals underpinned in the UN Charter and the Rome Statute of which preventing the use of force to settle disputes among nations and people is one of its key objectives.   

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