Conor,

It may take an inordinate amount of time to make this a reality, but, like you, I think it should be a huge objective for the liberal – left. If we are going to do anything useful, then this is it.

Certainly agree with the thrust of your argument that progressives should be aware this issue is coming up for discussion and seek to influence the framing of the definition, however:

“A proper definition of the crime of aggression, which contained exceptions such as humanitarian interventions, could have a huge potential impact on international relations.”

It certainly could – It would amount to a rewriting of the UN Charter provisions on the use of force for a start. Unless the international community accepted the position that an individual could launch a humanitarian intervention and not a State (as the only two situations in which a State can use force are in exercise of self-defence and when authorised by the Security Council).

Hold on – there isn’t a Democrat in the White House yet, and if there is a year hence how much difference will it make?

The notion of unilateral British military intervention abroad for any reason except urgent self-defence is a ludicrous example of delusional political posturing punching above our weight. Thanks to the Iraq and Afghanistan follies, our armed forces are already seriously overstretched, as the top brass keep telling us.

The only way to restore a system of international law which commands adequate confidence is to reform the United Nations and to restore the decisive role of a veto-less Security Council. Campaigning for this should be our priority.

This is not a utopian demand. The ICC statute will be reviewed and the issue of aggression will be discussed. It will not require any change to the UN Charter and the US government – as it is not a signatory to the Statute – will not be directly involved in the discussions.

What we need to do over the next year is simply alert people to the fact that this is happening and explain the issues involved. Forums such as this are a good way to do it, but the issue also should be discussed using other outlets, such as the Fabians, IPPR, Demos, etc. Human rights organisations such as Amnesty are probably already working on the issue so some outreach, of the type that was done on the issue of extended detentions is also needed.

Most single issue campaigns are reactive, but this calls for proactive work.

Douglas Clark,

If we are going to do anything useful, then this is it.

Sorry, but it strikes me that there are many things much more useful to do than define an offence that you have little to no chance of prosecuting let alone enforcing any judgement when it comes to the big boys.

I must say I find your comment on Conor’s CIF article extraordinary:

It does though, beggar the question of why the US – who are not just a non-signatory but have done their level best to sabotage the ICC – have been allowed a say at all?

Possibly because the US is the most powerful country on the planet?

The trap you and many other people have fallen into is worrying about whether a particular act constitutes a crime of aggression. What we should be worrying about is whether the act is a good idea or indeed totally abhorrent. The Labour Government played the game very well indeed.

UK Liberty. So how does that logic apply to the debate which has been taking place within the US about the Geneva Conventions or the UN Convention against Torture?

There is no contradiction between saying that torture is both totally abhorrent and constitutes a crime, Before Pinochet’s arrest human rights activists were repeatedly told there was no chance that a head of State could ever be prosecuted for this offence, but half a dozen former Presidents have been indicted since that date. I remember running training courses during the conflict in Kosovo and a group of refugees expressed exactly the same scepticism when I told them that I thought Milosovic could one day end up in the dock. They used the same sort of arguments as you.

The strange thing about this issue is that people take a maximalist and minimalist position simultaneously (ie it is impossible to achieve and it will not make any difference). Logically, both these positions cannot both be correct.

I do not think that either Bush or Blair will ever be indicted for the invasion of Iraq, but I do think that getting an agreement on what constitutes aggression would have a significant impact on the future of international relations. It is actually extremely naive to think that heads of State do not care about the potential force of international law.

ukliberty,

Just as civil law has a regulatory effect on the conduct of folk – else we should all be feeling free to do what we wilt – it seems entirely reasonable that we should attempt to make the law ’stick’ at a State level too. This is only meaningful if most nations sign up for it. For now, I see no reason why it cannot proceed absent the USA.

Clearly, this is not an ideal situation, and what makes it worse is the present US Administration’s negotiations with signatories to the treaty in order to maintain American exceptionalism.

This is unfortunate, to say the least, given that the USA was almost the midwife of the ICC.

A litmus test for the new outward looking administration would be to reverse all of that.

I do not think it is too difficult to define aggression. If it does not fall within R2P then it is aggression. Remember that the ICC will only act in extremely serious cases. It seems to me that this is a good starting off point.

“The country did not pose a serious or imminent threat to the invading forces and their actions were not sanctioned by the UN Security Council.”

As I understand it there was sanction by the Security Council in the end, and the intelligence at the time stated there was a threat. Hind sight is a great thing to have, and I’m not denying the potential for malice and corruption in decision making on the road to this conflict, but really the above is exactly the kind of argument that makes a mockery of anyone who opposes the war.

Lee: which is exactly why there needs to be a proper determination of such claims.

The invasion of Iraq was illegal – for the reasons that I gave – but it was not necessarily a crime of aggression. As you say, there was evidence that Iraq possessed WMD and its government was in breach of UN security council resolutions. There is a prime facie case against those who ordered it, but defining the crime would also involve drawing up defences.

To take an analogy, killing someone may or may not be murder, since this may have been an act of self-defence or it could have been an accident, or it could have resulted from a temporary loss of self-control.

At the moment international law does not allow such distinctions to be drawn – the only two exceptions to the use of force are when a nation acts in self-defence or when its actions have been athorised by the UN security council. It is precisely because there might be other exceptional circumstances (eg a genocide is taking place or a rogue nation is clearly violating other internationally accepted norms but there is no agreement on the UN security council for what action to take) that this issue needs to be clarified.

I would be interested to hear if there are any arguments – at all – against the principle of this.

Conor, the problem I’ve got with expanding the number of defences isn’t a principled one, but a practical one – if you fail to amend the UN Charter to take account of the new defences in the ICC Statute (i.e. humanitarian intervention), you will create a situation where a State will be in breach of international law, but not the individual who caused that breach. I think in light of this, and in order to create consistency and clarity in international law, we should be careful not to argue for any more defences than the two that currently exist.

Conor,

So how does that logic apply to the debate which has been taking place within the US about the Geneva Conventions or the UN Convention against Torture?

The US is signatory to those Conventions and therefore US lawyers can try to enforce them (and indeed US law) within the US legal system. The people out there are doing a good job, it seems to me, in fighting an administration that, like Blair’s, doesn’t seem to care about due process for its own sake. I’m not sure how campaigning is going outside the legal system – last time I looked, majority public opinion seemed to support the torture of ‘terrorists’ (by that I mean, people the administration has accused of terrorism).

Before Pinochet’s arrest human rights activists were repeatedly told there was no chance that a head of State could ever be prosecuted for this offence, but half a dozen former Presidents have been indicted since that date.

Who has been indicted for this offence (crime of aggression)? As far as I know, no-one has been indicted with this offence, but rather crimes of war – and they are people that are weaker than those bringing them to trial.

I do not think that either Bush or Blair will ever be indicted for the invasion of Iraq, but I do think that getting an agreement on what constitutes aggression would have a significant impact on the future of international relations. It is actually extremely naive to think that heads of State do not care about the potential force of international law.

Then it’s a good thing I didn’t make that claim! I think you’re right, it would have an impact. What I have an issue with is the idea that it is of greater use than anything else – I’m not saying it is of no use. I intend no insult to you, and apologise if I have inadvertently insulted you.

With regard to the issue of not caring about international law – I don’t know about Bush, but it seems to me that people like Blair don’t care as much about the law as much as how popular they are. So from that perspective, and the view that people’s eyes tend to glaze over when you start talking about UN resolutions and so on, it seems better to campaign to make Blair (say) unpopular (because we’ll be stuck in Iraq for years) than to campaign that he is breaking a law (that may itself be unpopular – “why shouldn’t we torture terrorists in a ticking bomb scenario”, “why shouldn’t we invade countries to change regimes” the people might ask). But then, what do I know? You’re the one who’s out there actually doing something.
Douglas,

it seems entirely reasonable that we should attempt to make the law ’stick’ at a State level too. This is only meaningful if most nations sign up for it. For now, I see no reason why it cannot proceed absent the USA.

I didn’t say it couldn’t proceed absent the USA, nor did I say we shouldn’t make any attempt. But considering the USA is the most powerful country on the planet, a country that has been involved in a number of conflicts in the last sixty years, and a country that it seems most people bring up in discussions about this (rather than, say, Saddam Hussein invading Kuwait) I think it would be silly not to engage it.

I do not think it is too difficult to define aggression.

It might not be difficult to define it (although it has been fifty years with no joy) – the difficulty lies with getting people to agree with your definition.

Remember that the ICC will only act in extremely serious cases.

I don’t understand what you mean by that. It seems like saying a court might only act in an extremely serious case of murder – to me, all murders are serious.

Gavin: I think that Article 2 of the UN Charter should be amended and I also think that the UN security council needs to be reformed. At the moment each of its five permanent members have a veto over Chapter VII resolutions, the only way in which the UN can authorise humanitarian interventions. The Council is completely unrepresentative (there is no member from Africa or Latin America) and some of its members have extremely poor human rights records.

Currently Russia, China, the US, France or Britain can each veto an intervention even in the face of an ongoing genocide. It is for this reason that some State (principally the US and UK) claim the right to act outside the UN framework. This was done over Kosovo and then – for very different reasons – over Iraq. The problem with this is that it allows individual States to act as judge, jury and excutioner in deciding when such interventions are justified and as we know, with both Kosovo and Iraq, sometimes the intelligence can be wrong.

Amending the ICC statute – which is going to be reviewed anyway – provides an opportunity to put one safeguard in place. It should be seen as complementary to the efforts currently away within the UN system to strengthen support for the Responsibility to Protect (R2P) doctrine. One of the problems with discussing this issue in Britain is that supporters of the invasion of Iraq have tried to hijack the R2P doctrine.

I’m not denying there is a case for substantive reform for the UN, just that arguments shouldn’t be made involving the argument of “illegal war in iraq”, the issue is muddy and murky grey at best and only serves to divide opinion by people that would normally agree.

Yes, it would be nice to put that particular debate behind us and move forward, but Iraq did significantly change discussions about international relations and it is virtually impossible to ignore it in any discussion of this subject.

I think that an agreement about the crime of aggression would help debate about UN reform, precisely because the two issues could be separated more easily. The major powers have a vested interest in the status quo precisely because the UN Charter is too restrictive about the conditions in which military force can be used, but has no real sanctions against those who violate these provisions.

If you look at the two types of cases that have been taken about the war in the Democratic Republic of Congo the contradiction is bery clear. The ICJ has ruled that Uganda’s invasion of the DRC was illegal and the ICC has arrested one of the Ugandan proxy militia leaders operating inside the country for war crimes. But it seems that no one can touch the Ugandan political and military leaders who actually ordered the invasion which led to the subsequent crimes.

it seems that no one can touch the Ugandan political and military leaders who actually ordered the invasion which led to the subsequent crimes.

I’m sure it comes down to a matter of will rather than ability, which seems pertinent to the question of enforcement. What value is there in having a law or judgement that won’t be enforced?

UK liberty, if someone had told me 10 years ago that there would now be half a dozen former heads of State in gaol or indicted for human rights violations I simply would not have believed them. There are lots of criticisms that can be made of the international tribunals, but to say that they have had no political impact is not one of them.

ukliberty,

Well, we are at a very early stage of calling war criminals to account, are we not?

We, as Liberals, should water the bloom, rather than pissing on it.

At least that is what I think.

It has the possibility of being a force for good.

….._____________________……

BTW, I am quite disappointed that this thread has not drawn any significant comment. I’d have thought that Sunny Hundal or Unity would have contributed by now. Hey, ho…

And before anyone that has contributed gets offended, it is not you I have a problem with. It is that the Brainiacs around here who seem to ignore something important. Such is life.

Sunny, can I ask you? Do you agree with Connor or not?

Conor, I’m not sure if you are putting words in my mouth or not.

Douglas, I think we have always been at an early stage of calling war criminals to account, and I think we will continue to be at an early stage for some time.

Now, I can see the value of indicting people and then bringing them to justice – but I can’t see much value in indicting people but not bringing them to justice. Or indeed having a law that cannot (or will not) be enforced.

I think you would agree that a nation with power is unlikely to submit in good faith for ever more to a foreign jurisdiction that says (and enforces) when it can and cannot go to war.

I continue to contend that one of the great achievements of the Government was to get us to argue about the legality or otherwise of the invasion of Iraq rather than whether it was a good thing. They buried the issue under the complexity of international law.

One of the amusing things about this debate is this idea that it is anything new. But, as I wrote before, the ‘attempt’ to get agreement on what constitutes ‘aggression’ has been ongoing for some fifty years, and more broadly speaking what the ‘international community’ can or will do when one of its members steps out of line.

Yes, great that we occasionally bring tinpot dictators to justice. But what is the purpose of law? Presumably it is to be able to hold people to account when they break a rule, and to deter the rest. Now, although our sample is small, I don’t think such laws as we are talking about deter anyone, and I suspect there are very few people being brought to justice. Law is not always the answer. That is not to say that there should be no law, but rather that we should not solely look to it as the answer.

So what should we be doing? We should be enforcing the law, of course we should. And we should make an effort to define aggression (although I think it is futile). But I also think we should be intervening earlier on, before we get to the stage where we are talking about war crimes, genocide and so on. One of the most despicable things about the international community is the wringing of hands when hundreds or thousands of civilians are being raped and murdered. We should be talking about preventing that as well as what happens after the fact (ie bringing the perpetrator to justice).

Hi Conor,
I am studying International Human Rights Law and am currently writing a paper on Aggression. I was wondering if you have any further writings on the issue or if you have come across any good articles or books on the matter that you could refer me to. Thank you very much for your time.

Kind Regards,
Theresa