The Crime of Aggression: A Solution to International Use of Armed Force?

HAYA KHAN

As of the 17th of July, 2018, the crime of aggression has been incorporated into the ‘Rome Statute of the International Criminal Court’. It functions as a method of criminalising the invasion of foreign countries, acting as a mechanism to bar the possibility of a world war. Does this mean no more war ever? Not quite.

The activation of this crime in the international court would have held Tony Blair and George W Bush accountable in the International Court of Crime for aggression. The war may have potentially been deterred by failing to garner support for invasion due to these laws acting as a discouragement amongst their supporters. However, its effect will not destroy the idea of war as a solution to conflict instantaneously.

British Prime Minister Tony Blair, left, and US President George W. Bush, right, in 2002.

The establishment of the International Criminal Court (ICC) in 1998 was to prosecute crimes such as genocide, to end impunity, remedy deficiencies of the ad hoc tribunals, take over when national criminal justice institutions are failing to provide remedies, and to establish peace and justice by deterring future war criminals.

The ICC’s primary objective is “effective deterrence”, to establish an intolerance in the international community for “monstrous acts” such as the invasion of foreign countries. It sought to assign responsibility and appropriate punishment to the Heads of State and accomplices that sought to initiate genocide through such actions in an effort to achieve justice and world peace.

The crime of aggression is defined in art 8(1) of the Rome Statute as “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.”

Under art 8(2), an “act of aggression” means “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”.

The offence can be committed, irrespective of a war being declared, where any of the following acts are committed:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein”

The UK has not ratified the amendment yet as they seek “greater clarity” before they do so. If a country (such as the UK) has not ratified it, the ICC cannot prosecute them for offences of aggression without a UN Security Council referral, which is easily preventable through the power of veto that the UK holds within the Security Council, as does the US and Russia. This reveals a loophole within art 8 for non-ratifying members.

Aside from the UK, the 30 states that have ratified the amendment are held to account for any act of aggression. For those that have not, it may exist as a mechanism of democratic accountability. If a state has chosen not to ratify the amendment they would not want to be in a position of being accused of being an aggressor by the people.

The adoption of this law came a little too late to bear upon the UK/UK/France airstrikes on Syria, or Russia’s invasions of Georgia, Moldova and Ukraine, but is it possible that it will be employed effectively in the future for deterrence? Or would the act be considered “humanitarian interference” and escape liability?

By virtue of art 8(1), the crime of aggression is only an offence for those in command positions of the state. This does not apply to terrorist or rebel groups. Regardless of this exception, it still provides a function of deterring aggression as a socially acceptable response in conflict.

Acts of aggression committed by states or terrorist groups stem from an idea of political control that cannot be removed without such a change in policy, action and leadership. The outlawing of aggression and invasion of another state sits with the purpose of the International Crime Court to establish world peace by holding leaders to account.

It is evident that even within the aim of deterrence, loopholes do exist for perpetrators of acts of aggression to escape liability. If the act is for ‘humanitarian purposes’, the character of the aggression would not be inconsistent with the UN charter. These humanitarian purposes would need to be established prior to initiating an invasion, or in defence at the ICC, but this does not remove the existence of violence and warfare between countries entirely.

It is not that aggressors will stop invading entirely in the blink of an eye upon this law coming into existence; it is now a matter of the court’s response and how the law will be interpreted and applied to cases in order to maintain further deterrence.

The act seeks to outlaw the idea to deter action, allowing leaders and their style of governance to be held accountable. This creates a reason for state leaders to pause and analyse the gravity of their aggressive actions, which is a step forward towards the purpose of world peace.

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