Aggression in the Light of International Law: Huge Problems and Minor Progress

The international law in its present form abounds with paradoxes. For example, it explicitly disallows the use of incendiary bullets, but contains no ban on the use of nuclear weapons. The present-day criminal law is in many parts just as incoherent: degrading treatment of captured occupants who brought death to the country they invaded is punishable internationally while aggression against a sovereign country is not.

The paradoxes are in fact easily explainable as they stem from the very nature of the international law. It is a set of norms established by the international community and as such cannot be more progressive than the countries the community comprises. Strictly speaking, the level of progressiveness of the international community varied widely in different epochs. After the countless aggressions in the first half of the XX century the international community was forced to adopt the well-known 1974 UN definition of aggression at the UN General Assembly. The definition, however, was not accompanied by any form of responsibility for launching it. As a parallel process, the UN International Law Commission worked on what might be one of the most ambitious international projects – the creation of an international court charged with the mission of prosecuting individuals guilty of international crimes. The initiative lasted nearly half a century and ended in 1998 with the signing of the famous Rome Statute of the International Criminal Court. The result still left much to be desired: oddly enough, the list of crimes in the new code did not include aggression.

No doubt, the right to aggression was not in any way acknowledged formally – rather, the problem was centered around the interpretation of the term. The compromise eventually reached was limited to the agreement that a conference of countries would revisit the theme in a distant future. On May 31 – June 11 the conference of member-countries finally convened in Kampala (Uganda) to review the Statute of the International Criminal Court which emerged as the product of a key international agreement and at times carried serious risks to its signatories. The conference was attended by representatives of 84 countries (67 member countries plus 17 observer countries). Notably, quite a few of the total of 111 member-countries were not represented, while several countries not recognizing the International Criminal Court, including Russia and the US, did send their delegations. The conference must be credited with upgrading Article 8 of the Statute of the International Criminal Court so as to enable it to prosecute perpetrators of such crimes as employing poison or poisonous weapons, asphyxiating, poisonous and other gases, liquids and other materials or devices, bullets which expand or flatten easily in the human body, bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. Some of the watchers dismissed the amendment on the grounds that the types of weapons are no longer in use. In his studies, Prof. G.M. Melkov (Russia) does invoke a number of cases where such weapons were used.

Actually, the number one task confronting the conference was to put aggression on the Statute's list of crimes. It was accomplished only during the final hours of the last day of the conference. The conference approved Article 8-bis of the statute defining the crime of aggression as “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”. It was also decided to use the 1974 UN definition of aggression to explain what exactly constitutes an act of aggression. Overall, the above amounts to serious progress in international law which now contains a consensus-based definition of the main international crime. Huge problems nevertheless persist despite the progress. First, the International Criminal Court can only exercise jurisdiction over the crimes of aggression committed a year after the ratification of the corresponding agreement or the passing of pertinent amendments by member countries. Secondly, the International Criminal Court will be able to exercise its jurisdiction only following a decision to be confirmed later than on January 1, 2017 by the same majority of the member countries as required to amend the Statute. Thirdly, aggression will be subject to the jurisdiction of the International Criminal Court only provided that the country responsible for it did not state earlier it had not recognized the jurisdiction. Finally, a country which is not a Statute signatory is automatically exempt from the jurisdiction of the International Criminal Court, and the provision applies to both the country's territory and citizens.

Importantly, the inclusion of aggression as a crime in the Statute of the International Criminal Court could motivate the countries now outside the Statute to join in since otherwise they cannot turn to the Court in case they fall victims to aggression. This aspect of the matter, however, is rendered practically meaningless considering that the Court has no jurisdiction over aggressors which never signed the Statute of the International Criminal Court.

Given all of the above one can only wonder how many acts of aggression will not be prevented over the coming years and how many aggressive plans are harbored by the countries which currently are not members of the International Criminal Court and have no intention to join it in the future.

This is a matter of the future. What is the current condition of the International Criminal Court? The issue was altogether avoided throughout the Kampala conference, though it certainly deserves attention. At the moment, the Court is hearing only two cases. The very first case undertaken by the Court – that of Thomas Lubanga Dyilo, former leader of a rebel group in Congo, was opened three years ago but had to be dropped recently. The case was dropped - not brought to completion - due to severe violations of the rights of the accused which were impossible to compensate. This is the second time the case is being dropped. On the first occasion, the prosecution appealed the trial chamber's decision to drop the case, and the court of appeals overturned it. The judges held their own and had the case dropped for the second time. This means that the world's main criminal court is unable to prove the guilt of the accused without severely infringing upon his rights and, moreover, insists that violating his rights is necessary. Another case – that of Germain Katanga and Mathieu Ngudjolo Chui, leaders of militant groups in Uganda, is also in the state best described as collapse. The defense of one of the accused is demanding to drop the case due to the illegal character of his arrest. On the one hand, the judicial chamber declined the demand and the chamber of appeals confirmed that it was right in doing so, but on the other two judges from the chamber of appeals did not agree with the majority ruling. Thus, in his case we witness divisions within the main chamber of the International Criminal Court, which is a clear indication of its deep crisis not only in what concerns safeguarding the rights of the accused but also in the Court's basic functioning. Considering that the opening of the hearings in the third case – that of former vice president of Congo Jean-Pierre Bemba – has been postponed twice without clear explanations, the obvious conclusion is that the International Criminal Court is remarkably unsuccessful. Somehow, the theme did not come up during the Kampala conference. This might be seen as an attempt to pretend that there are no truly serious problems, and the whole approach is fully predictable. The basic fact is that all of the shortcomings of the so-called international criminal justice are not results of mistakes or side-effects of any kind. They are the outgrowths of the international courts policy originally charted by those who created them. Ostensibly meant to prevent crimes from staying unpunished, the International Criminal Court was established to do away with defiant leaders. Therefore, it is logical that it takes violating their rights to prove their guilt – otherwise the accused might oftentimes be able to prove that it is the people putting them on trial who are actually guilty.

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