International Court states to discuss how to prosecute illegal attacks by one state on another

Int’l Court nations to ponder crimes of aggression

THE HAGUE, Netherlands — The 111 member nations of the International Criminal Court hope to finally agree on how to prosecute illegal attacks by one state on another when they meet next week in Uganda, the conference’s leader said Thursday.

President of the Assembly of States Parties, Lichtenstein diplomat Christian Wenaweser, told reporters during an online question-and-answer session that he is “cautiously optimistic and believe that we have a good basis for a solution that finds very wide political support.”

But top jurists and a prominent human rights organization warn that prosecuting the as-yet-undefined crime of aggression could open the world’s first permanent war crimes tribunal to accusations of politicization.

Richard Goldstone, former prosecutor at the U.N. war crimes courts for the former Yugoslavia and Rwanda, wrote in an opinion piece for the New York Times that “now is not the time” for the court to tackle the thorny legal question.

“The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution,” he wrote.

New York-based Human Rights Watch agreed, saying in a statement that “making the crime of aggression operational could link the ICC to highly politicized disputes between states that could diminish the court’s role — and perceptions of that role — as an impartial judicial arbiter of international criminal law.”

Debate over the crime of aggression — broadly defined as attacks by one state on another that violate the U.N. charter — is expected to dominate the two-week meeting in the Ugandan capital, Kampala, organized by the court’s governing body, the Assembly of States Parties.

The meeting also aims to take stock of the accomplishments of the world’s first permanent war crimes tribunal since its founding document came into force in 2002 and seek renewed pledges of support from member states.

Human rights organizations have urged countries to use the conference to strengthen the court, which has started just two trials since it began.

“This major gathering of officials and activists from around the world in Kampala is bad news for those responsible for the worst international crimes,” Richard Dicker, international justice director at Human Rights Watch said in a statement. “We expect governments to seize the moment to step up their commitment to global justice.”

Aggression has been part of the Rome Statute from day one, but has never been prosecuted because it has not yet been defined and there is no mechanism for bringing to justice those suspected of the crime. If delegates agree to a definition, prosecutions will only be possible from the date the statute is amended, meaning past conflicts cannot be prosecuted.

According to a draft definition circulated ahead of the conference, aggression is expected to be defined as an attack by one state on another, “which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Major world powers such as the United States, Russia, China and India will not have a chance to vote on the issue as they are not members of the court.

While there is broad agreement on a definition, states are still wrestling with the question of how to trigger a case and that is what gives rise to the fears among legal experts that any mechanism will end up politicizing the court.

Options on the table include allowing prosecutions only if the U.N. Security Council or General Assembly or the world body’s highest judicial organ, the International Court of Justice, rules that an act of aggression has been committed.

Goldstone also warned that debate on aggression could also divide court members.

“Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated,” he wrote.