The crime of war

THE first Review Conference of the International Criminal Court (ICC) in the Ugandan capital of Kampala announced on June 12 that it would make aggressive wars launched by nation-states a prosecutable crime. This could turn out to be an important milestone in the annals of international law.

More than 80 nations attending the conference supported the resolution, which criminalises aggression or the use of force. The use of force includes blockades, invasions and bombings against another country, which is in violation of the Charter of the United Nations. The Kampala Declaration reiterated support for the ICC's mission to bring justice to victims of war, deter future atrocities and end impunity to perpetrators of serious war crimes.

The agreement will theoretically give the ICC the power to prosecute political and military leaders who initiate or execute illegal wars and also hold them criminally responsible for the international crime.

The ICC, set up under the Rome Statute of 2002, is the world's first permanent court to try perpetrators of war crimes and crimes against humanity. (The Rome Statute, adopted by 120 countries in 1998, came into force only in 2002 after its ratification by 60 countries.) So far, the 111-member ICC has been rather subjective in its activities and its main focus has been on the African continent. Most of its members are small and medium-sized states from Africa and Latin America. Japan and the European Union are among its biggest financial backers.

The only trials for crimes of aggression conducted until now were the United States-engineered post-war tribunals of Tokyo and Nuremberg. Top Japanese and Nazi German officials were sent to the gallows for war crimes.

The Sudanese President, Omar al-Bashir, has been charged with war crimes for alleged atrocities committed by his country's army and pro-government militias in the province of Darfur. An international arrest warrant has been issued against Bashir the first against a sitting head of state. The governments of most African and Arab countries that are members of the ICC refused to execute the warrant when the Sudanese President visited them. The African Union (A.U.) summit in Libya has stated that it will not cooperate with the ICC in executing the warrant.

Jean-Pierre Bemba, former Vice-President of the Democratic Republic of Congo (DRC), was arrested in Belgium in 2009 under a warrant issued by the ICC. He joins other DRC rebel leaders accused by the ICC of crimes against humanity and facing trial in European prisons.

The ICC has got the green signal from the Kenyan government to prosecute those involved in the pogrom that followed the December 2007 elections in that country. The ICC is allowed to intervene only when the state party is unwilling or unable to prosecute a case.

Meanwhile, governments that have been blatantly violating international law have escaped even mild opprobrium from the ICC. Countries such as the U.S. and Israel, which are currently waging illegal wars and subjecting countries and millions of people to economic blockades, are not members of the ICC. Bill Clinton as U.S. President signed the Rome Statute in 2000. But his successor, George W. Bush, preparing for the wars in Iraq and Afghanistan, withdrew the American signature, calculating that the ICC could target American officials and soldiers for prosecution. The Bush administration knew that it would be difficult for the U.S. to use its U.N. Security Council veto to override ICC decisions completely though the veto power gives the U.S. considerable political and legal cover to sidestep contentious issues.

The Obama administration, departing from the hard-line position of the previous administration, sent a delegation to Kampala. The ICC has conveyed to Washington that it wants greater cooperation in the interdiction of suspects and in the sharing of information.

The ICC Review Conference, held from May 31 to June 11, conceded that the Security Council should have primacy in deciding which cases have to be investigated. At the same time, the ICC also retains the right to initiate probes if there is a deadlock in the Security Council for more than six months. The ICC can then exercise its jurisdiction regardless of the deadlock, and try state nationals on the basis of referrals by a state party. However, the court would not have jurisdiction in respect to crimes of aggression committed on the territory of non-state parties or by their nationals or with regard to state parties that had declared that they did not accept the court's jurisdiction over the crime of aggression, the conference concluded. This move will shield other permanent Security Council members such as Russia and China from the prying eyes of ICC investigators. The Security Council can pass a resolution deferring an investigation or a prosecution under Article 16 of the Rome Statute on the grounds that they are injurious to international peace and security.

Rising powers such as India, Iran and Indonesia are non-signatories to the Rome Statute. These countries could be very vulnerable to outside meddling through the auspices of the ICC as Sudan is currently experiencing now. Human rights violations, real or imagined, have occurred in Chechnya, Xingjian (China), Aceh (Indonesia) and Kashmir. Moscow, Beijing and New Delhi have reasons to side with the West in the efforts to ensure that the Security Council continues to have the upper hand on issues relating to war crimes and genocide.

Primacy of UNSC

Japan, which is underwriting most of the ICC bills, said that it was deeply concerned by the fact that states that are not members of the ICC would be shielded from investigations. At the Kampala meet, Latin American and African countries were in the forefront, arguing that the Security Council should not get an exclusive role.

The majority of the ICC signatories, especially those from West Asia and Africa, were not happy with the importance still being accorded to the Security Council in the scheme of things. Both these regions have no veto power or permanent presence in the U.N.'s highest decision-making body. Egypt, which represented the Non-aligned Movement, was among the countries that were keen on limiting the Security Council's influence on the working of the ICC.

Those opposed to the pre-eminent role of the Security Council said that it was a political organ that had been badly compromised by its actions since the founding of the U.N. The Security Council's interpretation of Article 39 of the U.N. Charter, which defines an act of aggression, has left a painful legacy. Currently the people of Cuba, Iraq, Palestine and Afghanistan are living under the scourge of either an unjust war or a blockade. If the Security Council has its way, Iran too could soon face an economic blockade.

The U.S. stand

Despite the apparent concessions, Washington is still wary of the ICC. Of particular concern to Washington are the issues emanating from the ICC's focus on crimes of aggression. The ICC has made it clear that it wants to prosecute those responsible for waging unjust wars. The Rome Statute is clear that the ICC should do so.

At Kampala, the assembled delegates were unanimous in their view that political leaders should be held responsible for directing the use of armed forces against another state in contravention of the U.N. Charter. As the single greatest proponent of aggressive wars since the founding of the U.N., the U.S. has much to be worried about. The 2003 American invasion of Iraq could well come under the ICC scanner.

The Obama administration's ambassador-at-large for war crimes, Stephen Rapp, has said that the U.S. has reasons to be concerned as the ICC could have a prosecutor who is politically motivated. Rapp is of the view that ICC jurisdiction should follow a Security Council determination that aggression has occurred.

The U.S. State Department's Legal Adviser, Harold Koh, stated in March this year that the Obama administration strongly favoured the requirement of a U.N. Security Council resolution to launch criminal war prosecutions. Koh said that this view had the endorsement of two other Security Council members, France and the United Kingdom.

However, the U.S. and its major Western allies have no problems with ICC prosecutor, Luis Moreno-Ocampo, doggedly pursuing the Sudanese President on the flimsiest of evidence. On several occasions, Ocampo has personally criticised the Sudanese President, exposing the ICC to the charge that it does not respect the principle of the presumption of innocence. Ocampo once went to the extent of advocating air piracy, saying that the Sudanese President's plane should be accosted in mid-air and forced to land in an ICC signatory country so that he could be tried.

A.U. delegates at the Kampala conference wanted the prosecution of the Sudanese President either called off or put on hold. They pointed out that the ICC's decision to declare him a war criminal came at a time when talks between his government and the Darfur rebels were delicately poised.

Interestingly, the President of the ICC Assembly of State Parties (the body that supervises the work of the court), Christian Wenswesar, recently described Ocampo as incompetent.

At Kampala, Ocampo shared the dais with Ugandan President Yoweri Museveni, while announcing the ICC's decision to prosecute leaders of the rebel Lord's Resistance Army, which is fighting the government in Kampala. Civil rights activists and human rights groups have accused the Museveni government of committing atrocities against civilians.