The International Criminal Court (“ICC”) is a permanent world court that has universal jurisdiction today to prosecute individuals accused of crimes against humanity, genocide, and crimes of war. These crimes are so broadly defined that, in the hands of unaccountable prosecutors and judges, they can be made to include just about any acts or consequences normally associated with military action, including against terrorists and the states that sponsor them. While the crime of aggression was also included as one of the core crimes within the ICC’s mandate, it remains non-operational until a provision is adopted defining the crime and setting out the conditions for the exercise of jurisdiction.
A Special Working Group on the Crime of Aggression has been meeting at United Nations headquarters and other venues to work out such a provision, which will be submitted to the ICC’s governing Assembly of States Parties for final adoption. As the Special Working Group’s work product is entering its final stages, it is evident that it is moving in a potentially dangerous direction that will let terrorists and their state sponsors off the hook for their acts of aggression.
After delivering a pro-forma report to the press on February 13, 2009 at the United Nations’ New York headquarters, the Chairman of the Special Working Group (Christian Wenaweser, Permanent Representative of Liechtenstein to the UN) made a startling admission during the question and answer session that followed. When pressed under questioning, he conceded that terrorist leaders such as Osama bin Laden would not be subject to the ICC’s jurisdiction over the newly minted crime of aggression because they are not leaders of a member state. In this example of Alice-In-Wonderland justice a democratic nation’s leaders who order military force to be used in reprisal against terrorist strongholds in another state or territory could be prosecuted under the proposed definition of the crime of aggression, but the terrorists whose aggressive acts initiated the conflict in the first place would escape prosecution.
This entrapment of democracies which are trying to deal with the scourge of terrorism traces its roots to the thirty-five year old General Assembly Resolution 3314 entitled “Definition of Aggression”. It is this definition that the ICC’s Special Working Group is incorporating into its definition of the crime of aggression.
The General Assembly’s definition of aggression sets forth an open-ended list of acts that would automatically cover the United States’ use of force in Iraq to “attack” Saddam Hussein’s genocidal regime, and the United States’ “military occupation, however temporary resulting from such invasion or attack”. The quoted words are taken directly from the resolution. Israel’s occupation of territory formerly held by Jordan, Syria and Egypt, and its efforts to strike terrorist enclaves at their source, would also be deemed an automatic violation of the crime of aggression.
The General Assembly resolution states that “[N]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”
At the same time, the resolution’s definition of aggression does not bar, in its words, “peoples under colonial and racist regimes or other forms of alien domination” from doing whatever they believe they need to do to in their “struggle” for “self-determination, freedom and independence.” The definition of aggression also does not prejudice in any way “the right of these peoples...to seek and receive support” from friendly states.
All of this will be incorporated into the definition of the crime of aggression that the ICC will be able to prosecute. As usual, this typical example of UN-speak sounds half-way reasonable on its face because it uses the terminology of human rights and self-determination. However, in actuality the exception to the definition of aggression is subject to being manipulated in order to justify terrorism and to go after the democratic state leaders who are trying to defend against it. For example, on the basis of repeated UN Human Rights Council declarations branding Israel as a racist occupying power, it will not be considered an act of aggression for terrorists organizations like Hamas and Hezbollah to launch rockets into Israeli population centers and kill innocent civilians because they are engaging in a legitimate “struggle” against “domination” by the Israeli “racist” regime. And Iran would bear no culpability for providing arms, funding and training to their terrorist surrogates because it is merely helping “peoples under colonial and racist regimes” to achieve their “freedom”.
When the ICC ultimately obtains jurisdiction to prosecute Israeli government leaders for the crime of aggression in addition to war crimes, genocide and crimes against humanity, there will be no defense allowed that would show how the actions of Hamas, Hezbollah and Iran to carry out their vow to eliminate the hated Jewish state prompted Israel’s response.
In the face of the terrorists’ own declared efforts to destroy a member state of the United Nations, the ICC would be restrained by these glaring loopholes from taking legal action against terrorist leaders for the aggression they ordered and carried out. In short, the terrorists and their state sponsors will have impunity from the crime of aggression.
There is another serious danger lurking in the plans of the ICC’s Special Working Group to push through its definition and procedures governing the international crime of aggression. It poses a direct challenge to the UN Security Council, which has the sole legal authority under the United Nations Charter to determine whether an act of aggression has been committed by a member state and to enforce such a finding against the aggressor.
Under a version of the proposal that is strongly favored among Arab and developing
countries, the ICC prosecutors would be empowered to end-run the Security Council process altogether. The aim is to enable the ICC to charge and order the arrest of leaders of the United States and Israel even though they have not ratified the Rome Statute treaty that created the ICC. The current check on the ICC’s authority to proceed with a prosecution in such circumstances would be eliminated for the crime of aggression, namely the requirement of Security Council referral which is subject to being vetoed by the U.S. and the other permanent members.
An ICC investigation of alleged aggression by an individual in a leadership position of a state, whether or not a party to the Rome Statute of the ICC, could be commenced if the General Assembly, the ICC’s own Pre-Trial Chamber or the International Court of Justice (author of the advisory opinion declaring Israel’s security fence to be illegal) has determined that an act of aggression has been committed. The Security Council would not have to be in the picture at all.
Even with the best of intentions, an international criminal court is utterly incompetent to deal with complex international peace and security questions that are so intertwined with the issue of whether acts of aggression really occurred in certain circumstances. It can only consider the case of the individuals brought before it for trial without regard to the broader context of their actions in defending the citizens to whom they are responsible as political leaders. This limitation is demonstrated by Article 53(2) (c) of the Rome Statute, which focuses on the individual circumstances of the victims and perpetrators in determining whether “the interests of justice” would be served by proceeding with a prosecution. Nothing is said about also considering the broader consequences of prosecution on international peace and security.
There are political, economic and military considerations in weighing whether a member state’s use of force constitutes an unjustifiable threat to international peace and security. The Security Council is the only UN body which is even remotely equipped to balance all of these considerations. The veto power of the permanent members has certainly been used to frustrate effective Security Council action in the past, but it also has the virtue of providing a check against rash or narrowly focused actions. The ICC is inherently incapable, and is not legally constituted, to render the kind of nuanced, multi-faceted judgments that are often required.
Add to the ICC’s incompetence the fact that it has buckled under pressure from the Arab League, the Organization of Islamic Conference (OIC) and the African Union. Due to such pressure, for example, the ICC has sat on issuing an arrest warrant against President Omar Al Bashir of Sudan that had been requested by the ICC Prosecutor. In his application, the Prosecutor accused Omar al-Bashir of mobilizing the whole state apparatus, including the army and the Janjaweed militia, to methodically commit genocide, crimes against humanity and war crimes in Darfur since 2002.
Despite the Security Council’s referral of the Darfur matter back in 2005 to the ICC for further action and its unanimous reiteration in June 2008 that justice and accountability are critical to achieve lasting peace and security in Darfur, the ICC’s Pre-Trial Chamber has taken no action to date on the Prosecutor’s application for an arrest warrant. That could change at any time, but the delay has only served to prolong the suffering of people who are truly victims of injustice.
At the other extreme, without waiting for a referral from the Security Council, the International Criminal Court announced a preliminary investigation of its own earlier this month into whether Israel committed war crimes during the recent Gaza war, after the Palestinian National Authority's move to recognize the ICC's authority in the West Bank and Gaza Strip. This follows in the wake of long-standing demands by OIC Secretary General Ekmeleddin Ihsanoglu that Israelis responsible for attacks on Palestinians should be tried for war crimes.
The ICC investigation is on top of a full-scale investigation by the UN Human Rights Council that is already underway and a separate UN Board of Inquiry on Gaza just set up by Secretary General Ban Ki-moon. None of these triplicate investigations, which deal essentially with the same subject matter, are being coordinated with each other.
Not even waiting for the results of these investigations, Iran’s Islamic Republic News Agency has reported that dozens of arrests warrants have already been issued for Israelis. "We will use universal jurisdiction to deal with these war criminals," said the head of the Gaza Human Rights Center Raji Sourani.
Israel is concerned enough about the prospect of international show trials that it has formed a special legal team to defend Israeli soldiers against potential war crimes charges.
President Obama has expressed some concerns about the ICC, particularly as it may affect our own soldiers’ safety. Although he is open to the possibility of joining the ICC at some point in the future, he said last October that “many questions remain unanswered about the ultimate scope of its activities”. If the crime of aggression is added to that scope of activities without far more adequate safeguards than we have seen to date and without including within its definition the acts of aggression by terrorist leaders, there will be yet another reason added to the many that already exist for continuing to decline membership in this dysfunctional global court.
 United Nations General Assembly Resolution 3314, adopted during the twenty-ninth session on December 14, 1974.
 IRNA (January 24, 2009).