Defining “Aggression”

The International Criminal Court came into being almost 8 years ago.  It has jurisdiction to prosecute genocide, crimes against humanity, war crimes, and criminal aggression.  Well, that is, it has jurisdiction to prosecute those crimes once they’ve been defined.  And to date, they haven’t yet come up with a definition for “crimes of aggression.”  Nor have they specified the conditions where the ICC could get involved in such crimes.

But maybe that’s about to change.  Reuters reports that ICC delegates today have been busily “seeking to agree [on] a definition of state aggression, and how ICC investigations into the crime … could be triggered.”  A rule is expected to be announced and adopted tomorrow.

The current draft appears to be a compromise that allows member countries to “opt out” by affirmatively stating that they don’t want the ICC to be able to investigate them for aggression.  The idea is that this will make it harder to opt out, by forcing countries to announce that they don’t want to play by the grown-up, civilized rules.  Any member country that doesn’t opt out, or its leaders, could otherwise get investigated.

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The ICC is a creature of treaty, so it only affects countries that have signed and ratified the treaty (the Rome Statute of the International Criminal Court).  So its jurisdiction is limited to countries in Western Europe, South and Central America, Canada, Australia & New Zealand, Japan, some sub-Saharan countries in Africa, Mongolia and Afghanistan.

Notice that this list does not include the U.S., Russia, China, India, Indonesia, Pakistan, or any country in the Middle East or North Africa.  What does that tell you?

It tells you that the ICC’s jurisdiction over acts of aggression, whatever it is, will be limited to those countries least likely to commit such acts in the first place.

Western Europe really has nothing to lose here.  Its culture is still reeling from the horror show of WWI and WWII that led to the formation of the United Nations in the first place.  Involvement in the U.N., growing economic and political ties through the EEC-EC-EU, and the defense umbrella provided by the United States have all led to a culture that is increasingly unlikely to engage in any unwarranted aggression.  Germany might get pissed at the unproductive Mediterranean countries and opt out of the EU, but it’s not going to annex the Sudetenland any time soon.  And the remaining member states are either completely isolated and peaceable, or effectively without a military capability that would permit an act of aggression even if they wanted to.

So is this all really moot?  Is there really any point to hammering out a definition of “crimes of aggression” that will only apply to countries either unable or unwilling to commit such crimes in the first place?

The answer is No.  It is critical.

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This is a big step in the development of international law.  Treaties and multinational agreements like this become precedent for how civilized nations are supposed to act.  Merely by defining what counts as unlawful aggression will influence how future acts are perceived by the world community, whether or not the aggressor was an ICC member state at the time.  It can become a general principal of international law, applicable to all.

In the whole history of mankind, it’s only recently that this has even been a concept — that one country attacking another could result in punitive action from uninvolved nations, simply as a matter of law.  It’s written into the U.N. Charter, where the first paragraph of the first article says one of the purposes of the body is to suppress acts of aggression and other breaches of the peace, and which gives the Security Council the power to do something about it in Chapter VII.  But before that, this was a pipe dream.

So the U.S. has signed, but not ratified, the Rome Statute.  That doesn’t mean that, with the passage of time, the rule being hammered out today might not apply to us in the foreseeable future.  If the standard becomes generally followed, and acts as a precedent for Security Council actions as well as ICC investigations, then it is quite likely that the rule would apply.

One might think that the U.S. would want to be a member of the ICC, if only to have a hand in writing the rules that would determine whether it could ever be considered an unlawful aggressor.  But then again, there is a valid concern that any military action by the world’s superpower, no matter how legitimate, is going to be perceived by some as being unlawful.  And Americans properly don’t want their country and their citizens subject to criminal penalties just because someone at The Hague got their nose out of joint.

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If you ask us, we don’t think the definition of “crimes of aggression” ought to be that difficult.  If a state — either through its military or through other agents (including terrorists it sponsors) — causes or facilitates an act of violence directed at the territory or inhabitants of another state, and it did so for a reason other than self defense, defense of a victim of unlawful aggression, or as part of an ongoing “hot” combat, then it’s a crime of aggression.  It’s essentially the same stuff that the Security Council would be able to react to, if it felt so inclined.

And as to the conditions where the ICC ought to get involved?  How about when either the Security Council refers the case to them, or when representatives from a simple majority of ICC member states decide that it’s more likely than not that a crime of aggression occurred.  That should be sufficient to launch an investigation, which may or may not result in any prosecution.

Well, we’re very interested to see what the delegates announce tomorrow.  Something tells us it won’t be anywhere near as clear-cut as this, though.