Aggression in legal limbo: a gap in the law that needs closing. (Symposium: The International Criminal Court at Ten)

• Published date: 22 September 2013
• Author: Ferencz, Donald M.
• Date: 22 September 2013

At "The International Criminal Court at Ten" conference held at the Washington University School of Law in St. Louis, the first prize in the inaugural Benjamin Ferencz Essay Contest was awarded to Matthew Gillett and Manuel J. Ventura, co-authors of The Fog of War." Prosecuting Illegal Uses of Force as Crimes Against Humanity. (1) The contest was funded by The Planethood Foundation, which my father, Ben Ferencz, (2) and I established in 1996. As discussed below, the International Criminal Court's present inability to exercise its jurisdiction over the crime of aggression leaves a glaring gap in the enforcement of international law. The essay contest was intended to explore whether that gap might be narrowed using the Court's existing jurisdiction over crimes against humanity. (3)

This Note will elaborate on the informal impromptu remarks that I offered during the contest awards program. (4) After briefly addressing the current status of the crime of aggression, I will relate some of my own reaction to my father's conviction that something must be done--and done now--to hold accountable those who would undertake the illegal use of armed force, subjecting them, if possible, to prosecution for crimes against humanity. Finally, as an indicator of the early development of his own thinking on this subject, I include, as an Appendix, a short piece he wrote prior to the contest, which I believe readers of this Note may find of interest. (5)

I. BRIEF BACKGROUND ON EFFORTS TO CRIMINALIZE THE ILLEGAL USE OF FORCE

As I've observed elsewhere, the principle that the illegal use of armed force is a crime didn't originate at Nuremberg. (6) In 1758, the Swiss jurist, Emmerich de Vattel wrote, in his Law of Nations, that whoever takes up arms without a lawful cause:

 can absolutely have no right whatever: every act of hostility that
                 he commits is an act of injustice.... He is chargeable with all the
                 evils, all the horrors of the war: all the effusion of blood, the
                 desolation of families, the rapine, the acts of violence, the
                 ravages, the conflagrations, are his works and his crimes. He is
                 guilty of a crime against the enemy, whom he attacks, oppresses
                 and massacres without cause: he is guilty of a crime against his
                 people, whom he forces into acts of injustice, and exposes to
                 danger, without reason or necessity,--against those of his subjects
                 who are ruined or distressed by the war,--who lose their lives
                 their property, or their health, in consequence of it: finally, he
                 is guilty of a crime against mankind in general, whose peace he
                 disturbs, and to whom he sets a pernicious example. (7)
                

Almost 200 years later, in his opening statement before the International Military Tribunal at Nuremberg ("IMT"), the American Chief Prosecutor, Robert Jackson, echoed de Vattel in arguing that once an illegal war has been started, the killings that flow from it are crimes for which the instigators of the war should be held criminally accountable:

 This inquest represents the practical effort of four of the most
                 mighty of nations, with the support of 17 more, to utilize
                 international law to meet the greatest menace of our
                 times--aggressive war. The common sense of mankind demands that law
                 shall not stop with the punishment of petty crimes by little
                 people. It must also reach men who possess themselves of great
                 power and make deliberate and concerted use of it to set in motion
                 evils which leave no home in the world untouched. (8)
                

His British counterpart at the IMT, Sir Hartley Shawcross, in his closing statement, put it this way: "The killing of combatants in war is justifiable, both in international and in municipal law, only where the war itself is legal. But where the war is illegal ... there is nothing to justify the killing, and these murders are not to be distinguished from those of any other lawless robber bands." (9)

Aggressive war-making was charged before the IMT as "crimes against peace" (10) and was indelibly branded by the Court as "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." (11)

When the Rome Statute of the International Criminal Court was negotiated during the summer of 1998, the drafters included aggression as one of the four core crimes over which the Court would have jurisdiction. (12) As a compromise, however, it was agreed in Rome that the Court would not be able to exercise its jurisdiction over aggression until a definition of the crime, as well as provisions delineating the manner in which the Court would be able to exercise its jurisdiction over aggression, were adopted within the Rome Statute. (13) Such provisions were intended to be adopted at a Review Conference, which was to be convened seven years after the date on which the Rome Statute came into force. (14)

The Review Conference on the Rome Statute of the International Criminal Court was held in Kampala, Uganda in 2010. There, representatives of the Assembly of States Parties agreed by consensus to adopt amendments to the Rome Statute defining the crime of aggression and setting forth the conditions under which the Court may exercise its jurisdiction over the crime. (15) However, the provisions granting the Court active jurisdiction over the crime--though adopted by consensus--require that, before they can become effective for anyone, they must be reapproved by the ASP (some time not before 2017), and be formally ratified by at least thirty States Parties. (16) Even once so activated, the Court's aggression jurisdiction may still be significantly limited: unless the Security Council refers a situation, all States Parties can opt out of the Court's jurisdiction over the crime, and aggression jurisdiction will not apply to the nationals of non-States Parties or with respect to acts committed on their territory. (17)

Although a global campaign is underway to encourage ratifications of the Kampala amendments at the earliest possible date, (18) at least for the time being, as far as enforcement by the ICC is concerned, aggression remains a crime without a court. Notwithstanding the vision of the architects of Nuremberg that the waging of illegal war would henceforth be known to all as a punishable international crime, the crime of aggression simply cannot currently be prosecuted, as such, at the international level. (19)

The obvious current gap in enforcement is the catalyst for thinking about the illegal use of armed force in perhaps a new way and in a new light--the light of "the common sense of mankind" which, as Jackson put it at Nuremberg, (20) demands that we hold accountable those who set in motion the evils which leave so many victims in their wake.

II. WHY Focus THE ESSAY COMPETITION ON CRIMES AGAINST HUMANITY?

The idea of sponsoring an essay contest, exploring whether, and how, a case may be made that the illegal use of armed force might be prosecuted as a crime against humanity, originated with my father. In the absence of current ICC jurisdiction over aggression, he is intent on refocusing the legal community's thinking regarding deterring the illegal use of armed force. Since Kampala, he has sounded a clarion call, of sorts: that, at least while aggression remains in legal limbo, those initiating the illegal use of armed force should not be immune from potential prosecution for crimes against humanity, over which the Court does have current jurisdiction. (21)

Standing at the lectern in Courtroom 600 at Nuremberg in September of 1947, a much younger Ben Ferencz opened the prosecution's case against the Einsatzgruppen defendants with what he referred to as "a plea of humanity to law." (22) The plea continues today. It is a plea--and a reminder--that those who defy the legal precedents set at Nuremberg do so at their peril. Since Nuremberg--and especially since the Rome Statute of the International Criminal Court came into force--no one can plead ignorance of the fact that the prohibition of crimes against humanity is enforceable at law, (23) regardless of the current status of enforcement of the crime of aggression.

Notwithstanding the very positive aspects of what was achieved at Kampala and the efforts that are currently underway to fulfill its promise of early activation of ICC jurisdiction over aggression, the delay in activating such jurisdiction is hard to reconcile with the Rome Statute's preambulatory language, which cites a determination to end impunity for such crimes. After all, does it make any sense, in logic or in law, that we can end impunity by accepting the proposition that one can start a perfectly illegal war, but as long as people are killed according to the so-called "laws and customs of war," no one can be prosecuted for committing a crime? (24) Sir Hartley Shawcrosss certainly didn't think so, (25) and neither, I suspect, do most of the rest of us--certainly not, at least, those who believe, as did Justice Robert Jackson, that the IMT established a legal precedent, binding on all nations, including those which sat in judgment at Nuremberg. (26)

The Nuremberg precedents, the ad hoc tribunals for the former Yugoslavia and Rwanda, and other similar courts, as well as the establishment of the International Criminal Court, reflect a developing global determination to end impunity for "the most serious crimes of concern to the international community." (27) Perpetrators should...