THE BIG powers have blocked moves to give the International Criminal Court (ICC) the power to investigate the crime of aggressive war, after two weeks of tortuous debate at the court’s review conference in Kampala, Uganda.
A deal reached after midnight on the final day of the conference saw ICC member states agree that the crime of aggression will be added to the law books. But prosecutors won’t have the power to bring a case for at least another seven years.
The decision has left human rights groups dismayed. Richard Dicker of Human Rights Watch said the decision came after “tremendous resistance by the permanent members of the security council to keep their exclusive power”. Campaigners had been pushing for the ICC, the world’s first permanent war crimes court, to be given the power to prosecute not just crimes committed during war, but war itself.
The crime of aggression was used after the second World War to prosecute Nazi leaders at the Nuremberg trials, but has found no place in modern war crimes law.
For many, the charge of aggression is the Holy Grail of the international justice movement, an aspiration that any state that invades another should be subject to legal process.
But the big powers, led by Britain, France and the United States, argued that a decision on how to respond to the world’s conflicts should stay with the UN Security Council.
The compromise reached is that the charge of aggression has finally been defined. It follows closely the United Nations Charter which says a state cannot go to war unless it is attacked, or unless the war is sanctioned by the security council.
Whether prosecutions will ever be launched is uncertain. A final decision on giving the criminal court this power will be held in seven years’ time, at the next review conference by the 110 states that make up the court’s membership.
Even if they say yes, the security council will retain tight control.
The council will have the power to block any ICC prosecution for the crime of aggression for 12 months, and will be able to renew this order as many times as it wants.
For some campaigners, this leaves international justice at the mercy of power politics.
They say it is inconceivable that any of the permanent members of the council: Britain, China, France, Russia or the United States, would want prosecutions against themselves.
And this immunity could well extend to their allies, leaving the criminal court in the position of being able to administer justice only to selected parts of the world.
There is further disquiet because ICC member states will also have the power to “opt out” of the crime of aggression, and non-member states will not be covered by the court’s jurisdiction.
This has left criminal court members such as Japan complaining that they are in the position of being subject to war crimes law while many potential adversaries are not.
But for the optimists, it is a step in the right direction. They hope the political impetus to give the green light to the crime of aggression will have grown by 2017.
And campaigners managed to fend off moves to give the security council full control over the process. The ICC will retain the power to launch such prosecutions, and while the security council can block it, the votes of all five permanent members will be needed to do so. For optimists in the human rights community, the cause of international justice has been advanced in Kampala, albeit by a distance measured in inches.
The ICC is the first permanent court set up to try individuals for genocide, war crimes and other major human rights violations.