The ICC assembly of states parties votes on crime of aggression in New York (Photo: Twitter/ @MikeGyula)

Welcome to the two-tier ICC

15 December 2017 by Janet Anderson

There will be a lot of celebration that it actually got through. “It’s down to the wire” tweeted Amanda Gharemani of the Canadian Centre for International Justice. 

There’s already a lot of ‘historic’ and ‘momentous’. But the agreement to activate a fourth crime at the International Criminal Court (ICC) – that of aggression, in addition to genocide, crimes against humanity and war crimes – is very limited. And those limitations reflect the current discussions and uncertainties about the ICC’s role that characterise many of the crises the ICC is grappling with.

But first. What’s been agreed?  Here’s Benjamin Duerr’s clear backgrounder’s conclusion: “For the first time since the end of World War II, world leaders could be held accountable for waging war.”

So, it is a big deal. And aggression means: “the planning, preparation, initiation, or execution of “an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Examples of such acts are: the invasion, bombardment, or attack of the territory of another state; military occupation or annexation; the blockade of the ports or coasts of a state; and the sending of armed bands or groups to other countries.” 

As he points out – only political and military leaders can be put on trial, and the ICC will have to get evidence like documents or insider testimony to prove they were involved in the planning or execution.

Also, the aggression has to be a manifest violation of the UN charter. Because invading another country is only allowed in self-defence and with the Security Council’s blessing. So, expect the arguments to be very thick and strong by human rights organisation  about whether or not any act of aggression by any country should be brought to the ICC.

But, don’t, of course, look backwards, because nothing that’s already happened in the world in the way of aggression, could possibly ever be brought to The Hague – the amendment only comes into force in July next year. And, as you’ll see, the likelihood of this bit of the Rome Statute  ever being litigated in court is actually rather remote.

Much of the very limited journalistic focus in the last few weeks has been on who wants this amendment to go through and who doesn’t. I was given a long briefing by long standing crime of aggression lobbyist and law professor Don Ferencz, to make it clear his fears that two members of the Security Council, Britain and France, who are also members of the ICC, were so unhappy with the way the amendment originally agreed in Kampala many years ago was being interpreted, that they would be prepared to scupper it.

At issue was whether states need to ratify the specific amendment to be ‘in’- meaning their nationals potentially being brought before the ICC - or whether they are automatically ‘in’ by signing up to the Rome Statute , and can ‘opt out’ if they want. I’m sure I’m not expressing it as precisely as a learned law professor would. But that’s the gist.

Don also briefed the Guardian's Owen Boycott. And at the ICC’s annual meeting, the ‘we only want it if we can opt in’ group was shown to also include Canada and Japan. And they were all less than enthusiastic about having to ‘opt out’, and wanted clarity. 

And clarity they got – at the very last minute.

Here’s Kevin Jon Heller s basic explanation:“Under the adopted Resolution, state parties have to do nothing in order to remain outside the Court’s aggression jurisdiction. Unless a state party ratifies or accepts the aggression amendments, it will be in the same position as a non-state party.”

So that means that only the 30 plus countries who have signed up so far will be under this new jurisdiction. Plus, any more who now want to hop on board. They will potentially have their nationals charged in The Hague if they invade another country that’s also already signed up to the amendment. So, Lichtenstein had better stop planning to invade the Netherlands. And Belgians can stop shaking in their boots at the prospect of Swiss aggression. Or at least know there is potential legal redress if they do.


Two tiers?

So, we end up with a less than universal Rome Statute. Welcome to the two-tier ICC.  I put that as a quick question to some Dutch-based law professors – is this now a two tier ICC?

Kevin Jon Heller was as clear as ever:“Absolutely”. Sergey Vasiliev, with dose of political reality told IJT: “Yes. Couldn't have been otherwise”.

And Dov Jacobs, with relish for the battles to come, explained: “To some extent yes, should the judges decide to follow the interpretation given in the resolution, of course. I’ve always believed and argued that we’ve made things way too complicated legally with the crime of aggression, because states are weary politically. If we ever see a prosecution on this crime, there will be a lot of interesting developments at each step of the way, from jurisdiction, admissibility to the definition of the modes of liability...”

Now, at the risk of being seen to mix apples and oranges, this whole debate – which I’ve watched by twitter rather than in New York, seems to me to reflect many of the ICC’s existential issues.

Firstly, how far does commitment to putting perpetrators of horrible crimes on trial really go – when Russia, China, the United States, India Pakistan etc. etc. don’t belong to the ICC? This issue dominates all my discussions about the ICC with the general public.

Secondly, how does the ICC deal with issues thrown up by its current investigating Russian involvement in Georgia and US involvement in Afghanistan? The US statement to the meeting in New York, brilliantly torn apart by Stephen Pomper on Just Security, showed not only how little cooperation the court should expect, but also how a world power really doesn’t accept the writ of any institution apart from the one in which it wields a veto – the Security Council.

Thirdly, South Africa is definitely planning to leave the ICC. It talks about its obligations under international law while the ICC says its arrest warrants takes precedence. How many other countries will say: 'no we don’t like the inflexibility of the system'.

As we approach the 20th anniversary of the signing of the Rome Statute , don’t expect this battered institution to suddenly flourish and deliver. Do expect a lot of hot air, professions of support, recognition of the ICC’s symbolic value, and frustration that it is so flawed. States have just given the ICC a meager budget increase, barely covering costs. That’s the reality. 

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