ICC States Parties give hope to supporters of humanitarian intervention and the ‘Responsibility to Protect’

by Jorge Crespo García, Universal Rights Group Accountability, Beyond the Council BORRAR, Beyond the Council BORRAR, Blog BORRAR, Blog BORRAR, Human rights institutions and mechanisms, Prevention, Prevention, accountability and justice BORRAR

On 17 July 2018, the International Criminal Court’s jurisdiction over the ‘crime of aggression’ – its fourth ‘core’ crime – was formally activated. This followed the historic decision of States Parties to the Rome Statute on 15 December last year to adopt a resolution amending the instrument. Although States Parties ultimately decided, when adopting the resolution, that the Court’s jurisdiction (in the context of the ‘crime of aggression’) would be limited to countries that choose to ratify the amendment (rather than all Parties to the Rome Statute), the activation is nonetheless profoundly significant.

That is especially the case in terms of its possible impact on ‘humanitarian intervention’ or the ‘responsibility to protect’ (R2P) – concepts that have become bogged down in political controversy and division. Those controversies have led to a situation whereby political State-led progress on R2P – on both the principle and its implementation – has become almost impossible. However, with the activation of its jurisdiction over the ‘crime of aggression,’ the ICC may now become a key agency of progress on this important issue.

The decision of States Parties, the agreed definition of ‘crimes of aggression,’ and the involvement of the ICC on matters touching on R2P, are also significant for another reason: they reflect a growing international emphasis (also seen in the human rights world with the work of the Fact Finding Mission on Myanmar, and the global development of ‘Magnitsky acts’) on individual criminal accountability, as opposed to more traditional notions of State accountability.

 A historic decision…

Aggression was one of the four crimes listed in the Rome Statute when the treaty was adopted in 1998. However, the completion of the definition and provisions of jurisdiction were postponed for further negotiation. In 2010, States Parties adopted the definition and conditions of activation and jurisdiction for the crime of aggression during a meeting in Kampala, Uganda (the Kampala Conference).

Then, in the early hours of 15 December 2017, States Parties agreed (through the adoption of a resolution amending the Statute) to activate the ICC’s jurisdiction over the crime of aggression. This decision came into effect on 17 July 2018 – the date of the 20th anniversary of the adoption of the Rome Statute.

The adoption of the resolution on the crime of aggression came at the end of ten days of intense diplomatic negotiations at UN headquarters in New York. A particular source of contention was the question of whether the Court’s jurisdiction would apply to all Parties to the Rome Statute (once the threshold of 30 ratifications had been met), or only to those that had accepted the Court’s jurisdiction over the crime (by accepting the amendment). In the end, States decided to follow the latter course. To-date, 35 States have ratified the amendment.

With this historic development the international community has ensured that, for the first time since the post-World War II trials in Nuremburg and Tokyo, an international court has the power to hold political leaders individually criminally responsible for waging aggressive war.

Following the Kampala Conference, the crime of aggression is defined 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.’ These acts can include, among others, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts.

A significant moment for R2P?

A particularly significant aspect of the international agreement to activate the crime of aggression, is that the Kampala Conference also decided to give the ICC the power to judge whether military interventions could be justified on humanitarian grounds (thereby potentially adding a new layer of flexibility to the principle of Ius ad bellum). This, in turn, means that ICC judges will need to frame, through their jurisprudence, the nature and scope of the disputed concept of ‘humanitarian intervention.’

For the past fifteen years, the international discourse around ‘humanitarian intervention’ has focused on the concept of the ‘responsibility to protect.’ This concept emerged in the 1990s in the aftermath of the terrible atrocities committed in places such as Rwanda and Bosnia, and was formally recognised and accepted by world leaders at the 2005 World Summit.

Under paragraphs 138 and 139 of the Summit outcome (GA resolution 60/1) on the ‘responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity,’ States agreed that they each have a responsibility to:

  1. Protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity, including by preventing such crimes from happening in the first place.
  2. To work together, as responsible members of the international community, to provide assistance to States that may lack the capacity to fulfil their responsibilities under point 1.
  3. To use appropriate diplomatic, humanitarian and other peaceful means, in accordance with the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
  4. Where peaceful means prove inadequate and where national authorities are manifestly failing to protect their populations from atrocity crimes, to be prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter (including Chapter VII).

The last of these four points has become, unsurprisingly, the focus of enormous controversy, especially in the aftermath of the West’s UN-sanctioned 2011 intervention in Libya[1]. Indeed, although R2P is a complex and multi-dimensional concept, in the minds of many developing countries – especially large or influential developing countries – plus Russia, it has become synonymous with point 4 alone. This, of course, raises the question of ‘humanitarian intervention’ – i.e. when and at what point (if at all) does outside military intervention to prevent, or protect populations from atrocity crimes become justified?

It is in this context that the activation of the ICC’s jurisdiction over the crime of aggression, including the recognition of judges’ competence to frame the concept of ‘humanitarian intervention’ and determine where military intervention is justified (or not) is so significant. Where States have failed to drive political progress on these important questions, international judges now have the possibility to secure legal progress.

[1] Security Council Resolution S/RES/1973

Featured Image: The Assembly of States Parties to the Rome Statute celebrating after the historic activation of the crime of aggression during the final plenary session on December 14, 2017.
(c) Amanda Ghahremani.

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