CASTELBUONO, Sicily (CN) — The act of war on Tuesday became a crime that the International Criminal Court can prosecute, though the court’s reach is severely limited because many of the world’s mightiest nations, including the United States, do not recognize the new international law.
Jurisdiction over the “crime of aggression” was activated Tuesday at the International Criminal Court, an international court in The Hague, Netherlands, that investigates and prosecutes genocide, crimes against humanity, war crimes and now, acts of war.
“It’s a very important day in history,” said Sheryn Omeri, an international law expert in London who has worked in the office of the prosecutor at the International Criminal Court. “And it has arrived despite considerable opposition.”
Chief among opponents of the new statute were Great Britain and France, she said.
The United States is not a member of the International Criminal Court since it has not ratified the treaty that established the criminal court.
Russia, Saudi Arabia, India, China, Syria and Iraq are among other nations that have not ratified or signed the Rome Statute, which set up the International Criminal Court exactly 20 years ago, on July 17, 1998.
Britain and France, although signatories to the Rome Statute, have not ratified the amendments that bring to life the crime of aggression. Therefore, their leaders are not subject to being prosecuted under law unless the UN Security Council refers them to the criminal court for investigation. But as permanent members of the Security Council, Great Britain and France would likely veto such an action, Omeri said.
Legal experts said that the last time a court had the power to prosecute the act of war-making was when German and Japanese leaders were tried in the Nuremberg and Tokyo trials after World War II.
The new amendments to the Rome Statute say it is a crime for politicians and military leaders to plan, initiate or execute an act of aggression that “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
Omeri said the invasion of Iraq in 2003 by the United States and Great Britain can be viewed as an example of a war that may be said to fit the description of a violation of the UN Charter.
In that war, as found by the Chilicot Inquiry in 2016, the United States and subsequently Britain sought regime change in Iraq and essentially fabricated a self-defense case to overthrow Saddam Hussein, she said.
She added: “It is not consistent with the UN Charter to perpetrate acts of war on another sovereign state simply because the attacking state does not like the government of that other sovereign state or considers that its foreign policy aims would be better achieved through the installation of a ‘friendlier’ government.”
A crime of aggression, according to the amendments, involves the use of an armed force by one state against another. More precisely, the statute makes it a crime to invade, attack, annex or bomb another state. It goes further still, by making it a crime for a country to militarily block another country’s ports or coasts; for a state to allow another state to attack a third state from its territory; and for a state to order an attack using armed bands or mercenaries.
“Any criminal court that takes itself seriously must outlaw war-making,” said Geoffrey Robertson, a London human rights lawyer and former judge on the Sierra Leone war crimes tribunal. “Aggression is the supreme crime. Many other deaths and maimings follow from an act of war.”
He said the court needed “this crime in its arsenal.” He hoped the law would help deter military actions.
“At least now we have a red line,” he said.
The law cannot be used to prosecute past conflicts, such as the invasion of Iraq, the annexation of Crimea by Russia or attacks on Syria.
Thirty-five of the 123 nations that are party to the International Criminal Court have ratified the crime-of-aggression amendments, including Germany, The Netherlands, Belgium, Uruguay and Botswana. The leaders of the nations that have ratified the amendment are now open to prosecution should they start a war of aggression.