What aggression? Whose aggression?

What aggression? Whose aggression?

Went to an interesting lecture last week about on the ‘Crime of Aggression’. Everyone agrees thus that aggression is an evil, and that an end should be put to aggression wherever and whenever it takes place. This is why the recently established International Criminal Court has jurisdiction to decide and punish people who have be involved in the commission of an act of aggression on behalf of a state.

The International Military Tribunal at Nurmberg outlawed any act of aggression in the very clear and strong language:

"To initiate a war of aggression . . . is 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."

Individuals can be held accountability for a crime of aggression if they are involved in the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing....". Thus for perhaps the first time in history, it was decided that “individuals have international duties which transcend the national obligations of obedience imposed by individual states."[1]

For ICC today, the major sources of contention surround i) the definition of what a crime of aggression is, and ii) who has the authority to determine when an aggression has taken place. The Rome Statute establishing the International Criminal Court leaves the definition of what aggression is open (Art 5(2)), to be determined in the future. Though there are some debate about the (legal) definition of aggression, some listed here are more or less undisputed (though nonetheless not exhaustive)[2]:

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invasion or attack by the armed forces of a State of the territory of another State, or military occupation, or annexation of territory by the use of force

bombardment by armed forces of a State against the territory of another State

the blockade of ports or coasts of a State

the use of armed forces of a State which are within the territory of another State in violation of the terms of an agreement between those States

a State allowing its territory to be used by another State for an act of aggression against a third State

a State sending armed bands, groups, irregulars or mercenaries to carry out grave acts of armed force against another State

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The reason why it’s been impossible to reach a legal definition of aggression is because states and scholars are unable to agree on a definition that is wide enough to cover all sorts of possible future scenarios, but that is strict enough to avoid political abuse.

And it’s the issue of political abuse that the next big controversy is all about. Who gets to decide when an act of aggression has taken place? Looking at the UN Charter, specifically Art 39, it appears that the Security Council is the one to decide, because this body of the UN is the one endowed to ensure international peace and security. But as has been seen so many times before, the SC is often unable to decide unanimously, because the interests of the Big Five get in the way, and the ability to veto often results in a impasse, even when clear acts of aggression have taken place.

The next problem is one that is even more worrying, and one that seems all too common, and will undoubtedly continue to exist in the future. What if one of the Big Five is the aggressor who commits an act of aggression? The ability to veto basically is an immunity that places all five powers above the law and thereby enable them to get away with even the most heinous acts. Surely it is impossible to fathom the US condemning itself for an act of aggression for the invasion of Iraq. The double crises surrounding Iran and North Korea could be potential for other military campaigns. And what if in the near future up-and-coming rivalry China decides to realise its territorial ambitions and invade Taiwan? The ability of the SC to determine and to silence acts of aggression is arbitrary and only serve to protect ensure international peace and security as far as it confirms and is not in conflicts with any of their, be it individual or, more rarely, united, interests.

Undoubtedly, the determination of an act of aggression will be a political act. The rules as they stand today regarding the determination of aggression are poorly suited a time when new challenges and continuing superpower rivalries and ambitions present themselves. It was suggested that ideally an independent and impartial organisation, perhaps the ICC itself should have the right of reviewing what are essentially political determinations. Or better still, the Court should be empowered with the authority to determine what an act of aggression is in the face of political impasse and threatening vetos.

The UN’s weakness is not in its inability to act, but in the inability for it to act freely because of the presence of it outdated organisation of power premised on the victor’s supremacy and justice established in 1945:

“But in reality, the basic problem facing the UN has not altered since its inception in 1945. […]

The problem is the dominance of the Security Council by the five permanent members -- the US, Britain, Russia, China and France -- which also happen to be the five leading nuclear weapons states (although Israel may have unofficially usurped some of them in the atomic pecking order).

The power afforded by the UN rulebooks to these five countries alone, out of a total 192 members of the General Assembly, means that the UN, which can never ultimately be more than the sum of its parts, is effectively held hostage by the so-called "great powers."

They find it convenient to use the Security Council as a protective shield, diplomatic tool and excuse to promote inaction when inaction most suits their interest.

Alternatively, their pre-eminence allows them to ignore or stymie the UN when they are set on having their own way. Everybody on the council knows the way the game works. And the fact that each of the five exercises veto power means that uncomfortable confrontations, such as that before the Iraq war, are rare.”

…

But the key institutional reform -- enlargement of the Security Council to better reflect the interests and priorities of the whole international community -- has proved unobtainable.

Why so? Because the vested interests of the five permanent members in maintaining the status quo that suits them so well is too powerful.

Until this cartel is broken up, expect more tragic fiascos like North Korea, Lebanon and Sudan. And expect growing, righteous and increasingly violent rage in the developing world against the virtual monopoly of power enjoyed by the new and old empires of east and west.”[3]

A consequence of this SC dominated organisation is deadlock. As much as the idealistic principles enshrined in the UN Charter are to protect international peace and security, there can be no peace or security when the interests of certain powers are able to trump over human rights and justice. Rwanda underscored that the lives of a million civilians can be still be just as easily lost, even after the traumas of the Khmer Rouge. Russia was defiant against so-called ‘humanitarian intervention’ in Kosovo. In the face of the Iraqi (ongoing) campaign, the SC was unable to prevent the US and UK acting unilaterally. Vested oil and economic interests in Sudan meant that despite widespread recognition of and appeals to prevent the ongoing genocide the SC remains unwilling to act in unison.

“[…] In all cases, the United Nations has promised to uphold the highest principles of international law and then committed sins of omission which were so grievous it has been close to being an accessory to mass murder.

The result is that any totalitarian regime or movement committing crimes against humanity knows it can get away with treating the UN with […] derision […].”

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[1] Marjorie Cohn, ‘The Crime of Aggression: What is it and why doesn’t the US want the International Criminal Court to punish it?

[2] General Assembly Resolution 3314 (XXIX), < http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement>

[3] Simon Tisdall, ‘The fundamental problem with the UN’, The Observer