President Nicolas Sarkozy and former British Prime Minister Tony Blair during a meeting of the Union for a Popular Movement (UMP) party in Paris, France, 2008. Taamallah Mehdi/ Press Association. All rights reserved.On 14 December 2017, the 123 member states party to the International Criminal Court (ICC) made the historic decision to activate the Court’s jurisdiction over the crime of aggression. In principle, the ICC may be able to hold political or military leaders of states individually criminally responsible for the crime of aggression. However, to be effective, ratification is essential, and only a few ICC states are willing to comply with this decision. In particular, France and the United Kingdom, who have supported the work of the ICC since its creation, do not appear to wish to ratify the decision. Surely, it is time for them to do so.
The remit of the International Criminal Court
The aim of the ICC, which was created in 2002, is to put an end to impunity for perpetrators of the most serious crimes of concern to the international community, and to contribute to the prevention of such crimes. It aims to prosecute perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression. All these crimes, with the exception of the crime of aggression, were defined in the 2002 Statute of the ICC. States party to the ICC have been discussing the definition of the crime of aggression since then. In 2010 in Kampala, they agreed on the following definition:
the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
The ‘act of aggression’ means: the invasion or attack by the armed forces of a State of the territory of another State; any military occupation or any annexation by the use of force; bombardment; blockade of the ports or coasts; an attack by armed forces; and the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries.
However, in 2010, states did not agree on the activation of ICC jurisdiction for this crime. Instead, they established that activation would only happen when at least 30 States Parties ratified the amendments, and when the Assembly of States Parties – which is composed of representatives of every state party – decided to do so. This would have to take place after January 2017.
Fifteen years after the creation of the ICC, in2017, the member states party to the ICC decided to activate the Court’s jurisdiction over the crime of aggression. The activation will be effective on 17 July 2018.
The special condition for investigating the crime of aggression
The procedure to investigate the crime of aggression seems completely different from that to investigate the three other crimes genocide, crimes against humanity and war crimes. For these three crimes, the ICC can prosecute any individual from any nationality in all states party to the ICC, and in all states which have been referred to by a United Nations Security Council (UNSC) resolution. It can also prosecute any individual in any state in the world whose nationality is that of a state party to the ICC (article 12 of the Rome Statute of the ICC).
For the crime of aggression, ‘the Court shall not (my emphasis) exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.’ The opinio iuris of States Parties underlying the resolution, and who wanted to limit the role of the ICC for the crime of aggression, was taken into account. Until now, only 35 states have ratified the Kampala amendments, so the crime of aggression can only be investigated in those states. If the UNSC referred the case of the crime of aggression in a non-party state to the ICC, the Court would also have jurisdiction in that state. The difference in procedure for the crime of aggression is unfortunate as it is more restrictive than that for the three other crimes. However, overall the ICC Statute is more complete than it was, and ‘international law often moves forward in imperfect ways’.
More states need to comply with this new Court remit. Canada, Japan and Norway were reluctant to ratify, but could be encouraged to do so by civil society in those countries. Lobbying is already taking place in Canada. One would expect the main supporters of the ICC, and members of the Security Council, France and the United Kingdom, to be leading other states to ratify the amendments on the crime of aggression.
France and the United Kingdom reluctant to ratify the amendments relative to the crime of aggression
There is no sign of France and the United Kingdom ratifying them. Most analysts argue that France does not want to make it possible for the ICC to investigate a head of state. According to campaigners in favour of the ICC, the British government lobbied to block the international criminal court from activating the war crime of aggression. The aim is also to protect Tony Blair and other British politicians from the risk of future prosecution. Don Ferencz, an academic at Oxford University, is very damning regarding the British and French position:
You’d think that, of all people, the nations which sat in judgment at Nuremberg would be embarrassed, if not ashamed, by the utter hypocrisy of failing to lead by example in accepting the court’s aggression jurisdiction.
What can be done? Pressure by the European Union on France and the United Kingdom
Together, EU states could put pressure on France and the United Kingdom in discussions in the Council of the European Union. They could stigmatize French and British leaders, who advocate the defence of human rights values, for not ratifying the ICC aggression decision. Most EU states have ratified, or are in the process of ratifying this decision. Luxembourg, Estonia, Germany, Malta, Czech Republic, Slovenia, Lithuania, Finland, Cyprus, Belgium, Croatia, Slovakia, Austria, the Netherlands, Portugal, Latvia, Spain, Poland have ratified the relevant amendments. The following States Parties are currently actively working on the ratification of the amendments on the crime of aggression: Bulgaria, Greece, Hungary, Italy, Romania, and Ireland. Denmark also seems to be on the way to ratification. All these states can rely on the support of the European Parliament to put pressure on the United Kingdom and France. It has clearly stated that the EU should adopt a common position on the crime of aggression, and that Member States should ratify the amendments related to this crime.
EU states could make it clear that only future crimes of aggression are concerned by the ICC Statute. The ICC will not prosecute the crime of aggression until after aggression jurisdiction is fully activated. Tony Blair, who already faced a (failed) attempt of prosecution by a former Iraqi general in 2017, would not be concerned. Nicolas Sarkozy, who also faces an attempt of prosecution for his role in the Libyan conflict in 2011, would also not be concerned. But he might be concerned by the other ICC procedure on war crimes and crimes against humanity, as in October 2017, a coalition of 15 West African civil society groups filed against the former French President Nicolas Sarkozy at the ICC.
International criminal law is progressing, but it can only do so if the states which present themselves as defenders of human rights decide to promote and comply with international law. Making international law progress is in the national interest of all states; this is far more important for justice and peace in the world than protecting future leaders who would be responsible for a crime of aggression.