Attacking Syria? This is the crime of aggression

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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.