Wednesday, 27 January 2010

Crime of Aggression, International Law and the Chilcott Inquiry

Yesterday, two international lawyers who had held senior positions in the British government at the time of the Iraq invasion testified before an official inquiry that they considered the acts of the British government to be illegal. See the account in today's Guardian. Elizabeth Wilmshurst, who had been deeply involved in negotation of the Rome Statute of the International Criminal Court, courageously resigned when the advice was dismissed and the British government decided to proceed with its American partners. In addition to testimony by Elizabeth Wilmshurst and Sir Michael Wood, who had been the chief legal advisor, memos written at the time were revealed to the public for the first time during yesterday's hearing.
On 24 January 2003, Michael Wood wrote a memo because Jack Straw had told US vice-president Cheney that Britain would 'prefer' that the invasion be authorized by a Security Council resolution, but that it would be 'OK' if they tried and failed to get one 'à la Kosovo'. I note in passing that in 1999 no resolution on Kosovo ever was put to a vote in the United Nations Security Council.
In his memo to Straw, Michael Wood wrote: 'To use force without security council authority would amount to a crime of aggression.' Straw apparaently replied: 'I note your advice but I do not accept it.'
If Wood is correct, and I think that he is, then Straw (and Blair) committed the crime of aggression. But can they be prosecuted for this?
Although the International Criminal Court continues to wrestle with defining the crime of aggression, for the purposes of an amendment to the Rome Statute that will enable it to actually prosecute the crime, there can be no doubt that the crime of aggression exists under customary international law. This has been held by the British courts. It seems preposterous to claim that the crime of aggression existed at Nuremberg and Tokyo (it was then called crimes against peace) , but that it does not exist today because there is no definition in the Rome Statute.
The difficult issue is not defining the crime but finding a court with jurisdiction over it. The House of Lords has already taken the view that British courts do not have jurisdiction to prosecute the crime of aggression. George Monbiot, the Guardian columnist, has been raising funds for a prosecution of Blair. I hope he refunds their money back when he realises that this is a dead end.
The fact that the International Criminal Court cannot actually prosecute the crime of aggression, however, does not mean that this is irrelevant to its work. It arises indirectly, and provides a route to litigate these issues and, I think, hold Blair and Straw accountable.
The Court's Statute adopts a concept of criminal enterprise (art. 25(3)(d)) by which an individual is punishable by the Court who 'contributes to the commission or attempted commission' of war crimes, crimes agianst humanity and genocide 'by a group of persons acting with a common purpose. Such contribution shall be intentional'' and shall be 'made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court' (my italics). This is the entry point for the crime of aggression in the work of the International Criminal Court.
There is a good case to be made that Blair and Straw were part of 'a group of persons acting with a common purpose' whose activity involved 'the commission of a crime within the jurisdiction of the Court', namely, the crime of aggression. Article 5(1) of the Statute states that 'the crime of aggression' is a crime within the jurisdiction of the Court. Although article 5(2) says that temporarily the Court cannot exercise jurisdiction over the crime of aggression, this is not what it would be doing if it proceeded against Blair and Straw for war crimes committed pursuant to a common purpose to commit aggression. All this does is make effective the words of article 5(1), which describe the crime of aggression as a crime within the jurisdiction of the Court. These same words are used in article 25(3)(d).
The Court can exercise jurisdiction over war crimes committed in 2003. It has jurisdiction over Blair and Straw because they are nationals of a State party. And it can punish those who were part of the 'common purpose' or criminal enterprise to commit aggression even for war crimes committed by individuals who escape its jurisdiction, such as American nationals.
The Prosecutor of the International Criminal Court has already been dismissive of appeals that he investigate British war crimes in Iraq, although he has acknowledged that there is good evidence some took place He has also suggested that Britain is dealing with them before its own courts.
But Britain isn't dealing with the masterminds of the joint criminal enterprise to commit aggression. They are liable under the Rome Statute to the extent that war crimes were committed pursuant to this joint criminal enterprise. In other words, if either British or American troops committed war crimes, then Blair and Straw should be liable for prosecution by the Court under article 25(3)(d).
In his 2006 statement, the Prosecutor said he would not proceed against the British troops for what he suggested were isolated war crimes, because they were not serious enough. Perhaps he has a point here. But he might reconsider this with respect to Blair and Straw, especially given the fact that according to yesterday's testimony they defied advice from their own experts who told them that they would be committing the crime of aggression by invading another country without Security Council authorization. That strikes me as 'serious enough'.


Dov Jacobs said...

Dear Professor,

A little remark in relation to the following comment.

"It seems preposterous to claim that the crime of aggression existed at Nuremberg and Tokyo (it was then called crimes against peace) , but that it does not exist today because there is no definition in the Rome Statute"

I think that one can of course argue that aggression is an international crime, but, even if your remark is based on probably "having heard it all before", I find your dismissal of arguments contra a little too hasty by calling them "preposterous".
In relation to Nuremberg, the argumentation of the court in recognising individual criminal responsibility in customary law based, among other things, on the Kellog-Briand Pact was flimsy at best. Since then, there have been no binding international documents defining the crime and State practice in relation to its prosecution is scarce.
In relation to the link between the crime and the definition, I remain baffled by the claim that something for which nobody can agree on the content is law, especially in criminal matters. Without the definition, "aggression", as a crime, is just a word. You cannot separate the name from the substance. If not, and this is an argument ad absurdum, I could tell you that "defluxation" is a customary crime even though nobody has heard of it and irrespective of an hypothetical definition. More seriously, if everybody applies a different definition of "aggression", how can one claim generally that aggression is a crime under general international law?

Harlan said...

Article 6 of the Nuremberg Charter included either a war of aggression or "a war in violation of international treaties, agreements or assurances". Surely that would include the customary prohibition against threats or use of force which is reflected in Article 2(4) of the UN Charter.

The EU Framework Decision on combating certain forms and expressions of xenophobia cites the crimes defined in the Statute of the International Criminal Court (Articles 6, 7 and 8), and Article 6 of the Charter of the International Military Tribunal.

In this instance the enabling legislation cannot be used to prevent the Prime Minister or Foreign Secretary from inciting an illegal war which targets the members of another national group. Nonetheless, it still might be capable of novel applications to prevent those same individuals from publicly condoning, denying, or trivializing their actions after the fact.

Alfred said...

Dear Professor,

Since a war of aggression is a crime under the customary international law, the definition of a war of aggression is problematic, and fraught with political and legal difficulties, at least as applied to wars since the coming of modernity, due to the multiple layers of justification and qualification that most contemporary belligerents attach (or observers ascribe to) to their participation in military action. This problematic definition of a war of aggression is made easier by the fact that purported wars of aggression are usually accompanied by other crimes against the treaty law, or the customary international law, such as torture, crimes against the laws and customs of the war, crimes against humanity, and/or genocide.

The International Military Tribunal of Nuremberg, which followed World War II, called the waging of aggressive war “essentially an evil initiate a war of not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole. Article 39 of the United Nations Charter provides that the Security Council shall determine the existence of any act of aggression and “shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.

The Rome Statute of the International Criminal Court refers to the crime of aggression as one of the “most serious crimes of concern to the international community”, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC). However, the Rome Statute stipulates that the ICC may not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

In effect, only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the United Nations Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation, commits crimes is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.