04 Jun Guest Post: Germany’s Ratification of the Crime of Aggression Amendment: A Significant Step
[Jennifer Trahan is associate clinical professor at NYU’s Center for Global Affairs (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]
Yesterday, June 3, 2013, Germany deposited its instrument of ratification of the Kampala Amendment on the crime of aggression. The ratification is the 6th to date, and one step closer to the thirty ratifications needed to activate the International Criminal Court’s crime of aggression. The amendment, negotiated at the ICC’s Review Conference in Kampala, Uganda, requires 30 ratifications and one more vote at the ICC’s Assembly of States Parties in order for activation. The amendment provides both a definition of the ICC crime of aggression and sets forth conditions for the ICC’s exercise of jurisdiction over the crime. The definition also facilitates states in implementing the crime into their national laws – something considered controversial by some countries.
Germany ’s ratification is historic, because it was at the Nuremberg Tribunal that the Allies prosecuted key Nazi leaders for “crimes against the peace,” now termed the crime of aggression. Yet, the definition used at Nuremberg—and the International Tribunal for the Far East (Tokyo)—was rather minimal, and somewhat circular, necessitating the drafting work that led to the adoption of the crime of aggression amendment at the 2010 Review Conference. The text of the amendment rests on a sound historical foundation, incorporating language from Nuremberg ’s London Charter, U.N. Charter article 2(4) and U.N. General Assembly resolution 3314. Still, some countries, including the United States , remain wary of the ICC’s activating the crime of aggression. Under the complex jurisdictional agreement reached in Kampala , the U.S. , as a non-State Party to the Rome Statute, will be exempt from the ICC’s crime of aggression jurisdiction even once it activates.
Germany ’s ratification is important because it is the most significant country to date, and a significant NATO member, to have ratified the amendment. States appear to have various motivations in ratifying, with some countries clearly seeing the amendment as a step to further protect their national boundaries. While aggressive use of force by a state is already prohibited under the U.N. Charter, the crime of aggression amendment is hoped to provide added deterrence against aggressive use of force (that is, force that is not exercise in self-defence, authorized by the U.N. Security Council under Chapter VII, or humanitarian in nature). That the crime of aggression amendment does not criminalize humanitarian intervention is something that this author would prefer to have seen added clarity on; the U.S. had proposed an “Understanding” to this effect in Kampala , but it was not ultimately adopted.
Germany ’s step today should be applauded as a significant move that advances the rule of law, the work of the International Criminal Court, and a commitment to international peace and security.
I think it is incorrect to claim that the crime of aggression excludes uses of force that are “humanitarian in nature.” It most certainly covers such uses insofar as they are not authorized by the Security Council. After all, as Trahan acknowledges, the Review Conference specifically rejected US efforts to exclude unilateral humanitarian intervention from the ambit of the crime.
I disagree with Kevin.
For something to be the crime of aggression, there must be a “manifest” UN Charter violation, judged by its “character, gravity and scale.” “Gravity and scale” exclude de minimis incursions. “Character” arguably excludes humanitarian intervention.
So, while it would have added clarity to have the US Understanding that humanitarian intervention is not covered by the definition, the same is achieved by excluding from the crime of aggression Charter violations that are not “manifest” according to their “character.”
There was no agreement at Kampala that “character” excludes unilateral humanitarian intervention. That is why Jennifer says “arguably” — because she cannot point to anywhere in the drafting history in which the US argument was actually accepted by the Review Conference. On the contrary, the Review Conference specifically rejected an Understanding that would have done precisely what she says “character” does. That Understanding was substantive; it did not seek to simply “add clarity” to something that was already accepted.
Moreover, a “humanitarian” intervention (like the invasion of Iraq, recall, according to the US) is very much a manifest violation of the UN Charter when it is conducted without the approval of the Security Council. Few uses of force are more manifestly aggressive than those that are conducted neither in self-defense nor with the approval of the Security Council.
And yet, the ICC’s website has (still) not publicised this important ratification… (not to mention the ratification by Botswana). Unless you read the blogs, you’d have no idea.