Attacking Syria? This is the crime of aggression

-->

The amendments to the Rome Statute on the crime of aggression were adopted by consensus at the Kampala Review Conference in June 2010. The British and French were part of that consensus. The definition of the crime of aggression is as follows:

1. For the purpose of this Statute, ‘crime of aggression’ means 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.

2. For the purpose of paragraph 1, ‘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. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

. 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;

…

Yesterday, the British Attorney-General provided legal guidance to the Government that suggests it would be lawful for the British to participate in the bombardment of Syria as some form of punishment or reprisal even if this is not authorised by the Security Council. He noted the perceived impossibility in obtaining authorisation from the Security Council. Then he went on to say that as ‘…an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike specific targets with the aim of deterring and disrupting further such attacks would be necessary and proportionate and therefore legally justifiable…’

What the Attorney-General seems to be saying is that an attack on Syria can take place despite the Charter of the United Nations. But the amendments to the Rome Statute do not provide for any exceptions to the Charter of the United Nations.  Indeed, paragraph 1 speaks of ‘a manifest violation of the Charter of the United Nations’. Can there be a better example of such a ‘manifest violation’ than an admission that authorisation of the Security Council should be obtained but that the United Kingdom can proceed without it?

Some may reply that the amendment is not yet in force. That is of course true, and it means that the crime of aggression cannot be prosecuted by the International Criminal Court. But the definition was agreed to by consensus, with the participation of the United Kingdom and France. It has a very strong claim to constitute customary international law.

It is interesting that the United Kingdom (and the United States) seem to love couching their militaristic appeals in references to customary international law. The Attorney-General’s advice begins by claiming that Syria has committed ‘a breach of the customary international law prohibition on use of chemical weapons’.

If I had asked my students, in an examination on international law, to answer the following ‘discuss the customary law applicable to the current situation of the use of chemical weapons in Syria’ and they were to refer to the customary law prohibition of chemical weapons and not to the customary law crime of aggression they would get 50% and fail the exam. Because I am a generous fellow, I might be tempted to give the Attorney General a couple of extra points for neat handwriting.

The obsession of the United States and the United Kingdom with chemical weapons is intriguing. Why is this such a ‘red line’, given the humanitarian disaster that has been taking place in Syria for more than two years? For that matter, what about other humanitarian disasters in the Middle East, and elsewhere, that have taken countless lives in recent years yet have not inspired the United Kingdom, France and the United States to unilateral military intervention? What is it about chemical weapons that gets them so agitated?

In an earlier comment on this blog I noted the absence of a crime of use of chemical weapons in the Rome Statute. Many States wanted a general condemnation of weapons that cause unnecessary suffering or superfluous harm, or that are indiscriminate. But some States blocked agreement on this because the language might then cover nuclear weapons. The result was that attempts at a specific prohibition on chemical weapons were also unsuccessful. It was argued that if the Rome Statute would not prohibit the rich man’s weapon of mass destruction, it should not prohibit the poor man’s weapon of mass destruction either.

I know that some colleagues are debating this elsewhere in the blogsphere. The argument seems to be that a broad construction of the notion of poison or poisonous weapons, whose use is criminalised by article 8(2)(b)(xvii) of the Rome Statute, might do the trick and encompass chemical weapons. It is fine for academics to make this argument, but it is a big trap for the United Kingdom, France and the United States and I doubt that they will fall into it. That is because if we consider chemical weapons to fall into the archaic category of poison or poisonous weapons, by some form of dynamic and evolutive interpretation of the Rome Statute, then we will also have to include nuclear weapons. What could be more poisonous than nuclear weapons? And London, Washington and Paris won’t go along with that.

My hunch is that the real explanation for the excitement about chemical weapons is that the UK, the US and France think that there should only be one type of weapon of mass destruction in the Middle East (or elsewhere, for that matter). And that is the weapon that they, and their local surrogate, possess. Any tolerance for the use of chemical weapons poses an immense threat to those who seek to retain their monopoly on weapons of mass destruction. Even the slightest use of chemical weapons from them requires an angry, punitive response. And they want us all to believe that sending rockets into Syria is a humanitarian gesture.

Attendance at Trial and the Kenya Cases Before the International Criminal Court

 

There has been much speculation about whether the presence of the defendants in the two Kenya cases at the International Criminal Court will be required during their trials. Yesterday, the Appeals Chamber suspended the application of a June 2013 ruling by the Trial Chamber that permitted one of the defendants, William Ruto, who is deputy president of Kenya, to be absent from much of the trial that scheduled to begin in mid-September.

The Appeals Chamber has not ruled on the merits of the issue. It has merely decided that the Trial Chamber’s ruling should be suspended until the substance of the appeal is decided, something that could take several months.

Whether or not the appeal should even have been authorized by the Trial Chamber is debatable. Judge Eboe-Osuji dissented on the grant of leave to appeal the decision, but was outvoted by his colleagues.

Yesterday’s Appeals Chamber ruling, by a unanimous bench, is nevertheless subject to criticism. Essentially it endorses the arguments of the Prosecutor to the effect that implementation of the decision authorizing absence of Samuel Ruto ‘would be difficult to correct and may be irreversible’.

A simple solution to this problem, without the need to suspend implementation of a Trial Chamber judgment, would be for the judges of the Appeals Chamber to act with due haste and appreciation of the urgency of the matter. Leave to appeal was granted on 18 July, leaving the Appeals Chamber with more than seven weeks to reach a decision. That would be more time than it took the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia to render what is arguably the most important decision in modern international criminal law, the Tadic Jurisdictional Decision of 2 October 1995. And it is about the same length of time that the Rules of Procedure and Evidence of the International Criminal Court require for the issuance of a decision following a confirmation hearing.

Why would the decision of the Trial Chamber be irreversible and difficult to correct if the trial begins on 10 September and Ruto is not present? He might miss a few weeks of trial, until the Appeals Chamber reaches its decision. What is so serious and uncorrectable about that? There are many examples in international criminal law jurisprudence of temporary absences of the defendant, sometimes due to illness, sometimes to quite intentional boycott of the proceedings, and sometimes because they have been excused in order to work on matters related to the defence.

The logic of the Appeals Chamber’s decision seems to involve accepting the notion that the defendant’s presence must be required during every single minute of the proceedings. Otherwise, the temporary absence resulting from implementation of the Trial Chamber ruling on presence at trial would quickly be corrected, were that to be the whim of the Appeals Chamber, once its ruling on the merits of the appeal is issued.

It will be curious to see if the Prosecutor changes her position when the Court confronts the situation of an obstreperous defendant in detention who refuses to go to trial one morning, a situation not unfamiliar to judges at the ad hoc tribunals. At the ad hoc tribunals, it is the prosecutor who has insisted that the trial go on and that the shenanigans of a detained defendant who chooses to boycott a hearing not be allowed to delay things. An alternative – let us hope we never get to this in international justice – will be defendants who are bound and gagged and taken by force to court.

Suppose Ruto is ill when the trial begins. Wouldn’t it be within the powers of the Trial Chamber to proceed, assuming he were to agree? (Ruto has of course agreed – it was his request to be absent - so the issue of proceeding in his absence without consent does not even arise.) Can it really be the scheme of the Rome Statute to take such discretionary authority away from a Trial Chamber?

On the substance of the issue, the core of the issue concerns article 63(1) of the Rome Statute: ‘1. The accused shall be present during the trial.’ This is generally understood to prohibit in absentia proceedings. Trial in the absence of the accused was allowed at Nuremberg and is explicitly authorised by the Special Tribunal for Lebanon; it is left unresolved in the statutes of the other ad hoc tribunals, where the issue has never really been tested.

The principal reason to prohibit in absentia trials is to protect the rights of the accused, although there may also be other justifications for this. In the impugned Trial Chamber decision, the judges consider whether article 63(1) imposes an absolute rule and conclude that this is not the case. There is a short dissent by judge Herrera Carbuccia who contrasts article 63 with article 61, where absence of the accused from the confirmation hearing is permitted under certain circumstances. Judge Herrera Carbuccia notes that it is in the best interests of the accused to be present, and this is surely correct, but what is to be done when the accused person decides otherwise?

Even Judge Herrera Carbuccia understands that there must be exceptions to the seemingly strict formulation in article 63(1). Her exceptions are narrower and she does not approve of the very general absence during testimony that the other judges of the Trial Chamber accept. Is this really a disagreement about principle or nothing more than a different take on the exercise of discretion? Her willingness to accept exceptions to article 63(1) only reinforces the unreasonableness of the decision by the Appeals Chamber to suspend application of the Trial Chamber Decision on grounds that a temporary absence of Ruto would be ‘irreversible’.

Different legal traditions reach rather different solutions on these matters. For those that are comfortable with in absentia trials, absence of the accused during part of the proceedings cannot be very surprising. In systems where in absentia trials do not generally take place, the matter is often elevated – mistakenly, I think – to a question of principle. But even adversarial systems that do not countenance in absentia trials usually make exceptions in a case where an accused who is not detained absconds during the proceedings. Then, the trial proceeds nevertheless. Is it an exception to the principle, or merely an indication that no real principle is at issue?

Assuming a trial begins with an accused present but at liberty and, typically for the International Criminal Court, continues for at least a few years. As it nears completion, after a a huge investment in money, time and energy by judges, lawyers and witnesses, the accused senses that things are not going well and decides to make a run for it. Would that decisively sabotage the proceedings? Or could the Court continue. My hunch is that the trial would proceed, even in the absence of the accused and despite article 63(1). The Court will cross that bridge if it ever gets to it.

But in ruling on the Ruto application it needs to bear all of these eventualities in mind, including the ones of which I haven’t yet thought. The Trial Chamber crafted a nuanced compromise that would probably work. The temptation for the Appeals Chamber, urged on by the Prosecutor, may be to formulate an absolute rule from which it is difficult to depart in the future. Other judges might not be as inclined as the Ruto Trial Chamber to allow such broad exceptions to presence at trial. But to the extent this is a matter for judicial discretion, perhaps it is better to leave the ruling untouched. Impetuous attempts to overrule the Trial Chamber by means of a rigid application of article 63(1) may haunt the Court for many years and leave it helpless when confronted with the unforeseen.

The Death Penalty in Countries in Transition

An important contribution to the academic literature on the death penalty has just been published by Routledge: The Politics of the Death Penalty in Countries in Transition, edited by Madoka Futamura of the UN University in Tokyo and Nadia Bernaz of Middlesex University London. There are very informative chapters on the phenomenon of abolition and its relationship with transitional justice dealing with a number of countries in different parts of the world.

Conference on UN War Crimes Commission

This year is the 70th anniversary of the establishment of the United Nations War Crimes Commission. Set up by the Allies at about the point where it was clear the tide had turned in the Second World War, it met regularly in London throughout 1944 and 1945 in order to prepare the post-war prosecutions. This was a seminal moment in the development of international criminal law. A conference to commemorate the Commission and to reflect on its work will be held at the School of Oriental and African Studies of University of London on 10-11 September 2013, under the presidency of Richard Goldstone. For more information, click here.