Activation of the Crime of Aggression: African States the missing link!

Last year, the 17th July 2018, twenty (20) years since the adoption of the Rome Statute – the multilateral treaty that established the International Criminal Court (‘the Court’), marked another milestone towards the recognition of the role that legalism can play in international relations. The crime of aggression was activated under the jurisdiction of the Court; hence the Court can prosecute the crimes of genocide, crimes against humanity, war crimes, and now aggression. That is, the Court can now hold individual political leaders accountable for committing the crime of aggression. The activation strengthened the international relations principle that waging wars of aggression is not a sovereign right but an international crime punishable in a court of law. Back in 1998, at the Rome Conference, where the Rome Statute was negotiated and adopted, the crime of aggression had been listed in the Rome Statute among the crimes under the jurisdiction Court.^[1] However since the delegates at that time could not agree on a definition of aggression, the Court could not immediately exercise its jurisdiction over the crime. It had to wait until a provision was adopted defining the crime and setting the necessary pre-conditions to enable the Court to exercise jurisdiction over aggression.

This was achieved during the Review Conference of the Rome Statute, held in Kampala, Uganda in June 2010. In Kampala, the States Parties, those states that had ratified the Rome Statute, reached a consensual decision and adopted Amendments to the Rome Statute of the International Criminal Court on the crime of aggression.^[2] The amendments provided a definition of aggression and also the pre-conditions to enable the Court to exercise its jurisdiction over the crime. Still there were steps to be followed for the activation of the amendments. First, the amendments required thirty (30) ratifications by States Parties. Second, and after the threshold of thirty ratifications is met, there was a requirement that after the 1st of January 2017 a decision was adopted by the majority of States Parties, adopting the amendments to the Statute. On the 26th of June 2016, The State of Palestine became the thirtieth State Party to ratify the amendments when it deposited its instruments of ratification. This paved the way for the Assembly of States Parties on 14th December 2017 to adopt a Resolution ICC-ACP/16/Res.5 activating the jurisdiction of the Court over the crime of aggression. In the resolution, it was decided ‘to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018’.

The last time that individual criminal responsibility had been applied to hold political leaders accountable for launching wars of aggression was at the Nuremburg Trials after the Second World War. In the London Charter of the International Military Tribunal the crime of aggression was codified under Article 6 as a ‘Crime Against Peace’. Since then, the possibilities of prosecuting political leaders for waging wars of aggression has been like a mirage in the desert. Political leaders of militarily and perhaps economically powerful states have willy-nilly committed crimes of aggression with impunity. In other words, international order has been based more on the law of might rather than the power of international law. It would be natural to assume that the protective shield offered by the activation of the crime of aggression to militarily and economically weak states, many in Africa, would be enough to attract African States Parties to the Rome Statute, and to ratify the 2010 amendments in large numbers. It is therefore curious that Botswana is the only African State Party out of a possible 34 that ratified the amendments. More so, the statements by African States after the adoption of Resolution ICC-ASP/16/Res.5 activating the jurisdiction of the Court over the crime of aggression were tepid when compared to those of other States Parties. The delegate from Madagascar stated that his country had not ratified the Kampala amendments and was still conducting national consultations. This was before he emphasised Madagascar’s attachment to paragraph 5 of article 121.^[3] Paragraph 5 provides that any amendments to articles 5,6,7 and 8, pertaining to the Court’s subject-matter (ratione materiae) jurisdiction, where only applicable to the States Parties that ratified the relevant amendments. A similar position was adopted by Nigeria. Uganda appeared to have been more excited by the fact that the origins of the amendments were in Uganda, as its delegate made no reference to if or when Uganda was planning to ratify the amendments.^[4]

The conundrum is that during the drafting process of the Rome Statute in the late 1990s, African States’ common position was that the Court’s subject-matter (ratione materiae) jurisdiction should include the crime of aggression. This position was first articulated in September 1997 in the Common Statement of SADC Ministers of Justice/ Attorneys-General following their meeting in Pretoria, South Africa. In paragraph three (3) of The Common Statement of the Southern Africa Development Community (SADC) member states, stated that they;

Strongly believe that the Court must have inherent jurisdiction of the core crimes of genocide, crimes against humanity, war crimes in international and non-international armed conflict and aggression;^[5] During the Rome Conference, African delegates spoke in favour of the inclusion of the crime of aggression under the jurisdiction of the Court. Mr. Sayed Kassem El Masry, Advisor to Egypt’s Minister for Foreign Affairs described aggression as ‘the basis of all crimes.’He even proposed that both the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) be given legal authority to determine the existence of aggression. This was a departure from the status quo where such authority is the limited to the UNSC.

The initial support by African States for the inclusion of the crime of aggression under the jurisdiction of the Rome Statute could be interpreted from the fact that they had directly experienced it or witnessed how fellow African states had struggled against aggressive tendencies of the military and economically powerful states. Although much of the aggression was from the former colonial powers, as was the experience of Congo after independence from Belgium, other situations of aggression were solely between African states themselves. In Congo, Patrice Lumumba and Joseph Kasavubu described, probably accurately, Belgium’s intervention in Congo’s internal affairs as ‘external aggression’ in a letter dated 13 July 1960 to the United Nations Secretary-General. In 1986, the United States launched Operation El Dorado Canyon against Libya in the name of self-defence. However, the then Organisation of Africa Unity denounced the raid ‘as not only a dangerous precedent but… a contemptuous and condemnable act in violation of the principles of international law.’ African states such as Ethiopia and Chad also experienced aggression from their neighbouring states. For instance in 1977, Somalia, in pursuance of its irredentist foreign policy, invaded Ethiopia in an act which could be described as aggression. It is a truism that in general Africa has experienced a fraction of inter-state conflicts in comparison to intra-state conflicts. Still, that does not rule out that in future inter-state conflicts fueled by irredentist ideologies might resurface and possibly increase as more African States may choose to pursue nationalistic foreign policy and abandon the ideals of pan-Africanism and regional solidarity. The fissures are already there to see, mainly in relations to border disputes especially where valuable resources such as oil and gas are discovered. This is the case between Malawi and Tanzania, who are members of the SADC. The two countries have had diplomatic tensions over the territorial border of Lake Malawi, where gas deposits were discovered. In 2019, Kenya and Somalia almost had a complete diplomatic fallout over the alleged auctioning of oil and gas blocks along the disputed maritime border. One would have thought that a combination of the historical realities and the emerging internal and external threats of wars of aggression would be motivation enough for African states to ratify the amendments to the Rome Statute. It is regrettable that this has not been the case.

Perhaps the dispiritedness being demonstrated by African States Parties is a reflection of their general dissatisfaction with the entire edifice of the Court. The African Union has been categorical of its opposition to the manner in which the Court has been going about its business. The general sentiment has been that, arguably, the Court is only hunting African personalities for investigation and prosecution while ignoring personalities from militarily and economically powerful states such as the United States and the United Kingdom for the crimes committed in Afghanistan and Iraq. Both the disciples and the high priests of the Court would argue that this view-point is flawed, considering that some African States invited the Office of the Prosecutor to open investigations into their territories through ‘self referral’. Still, the seemingly unconverted, suspect that the Office of the Prosecutor solicited such referrals. The difficulty with this argument is that it presupposes that African States lack the ability to make their own independent evaluation of what is best for them and their foreign policy decisions. In any case, such debates are beyond the focus of this post.

Another and perhaps more palpable argument is that African States continue to be wary of the role assigned to the United Nations Security Council in triggering the jurisdiction of the Court vis-à-vis the crime of aggression. Already African States have been consistent in their opposition towards the United Nations Security Council being given any substantive role in the operations of the Court. They had misgivings that such a role would inject raw-realist politics into the functioning of a judicial institution. Their concerns were prophetic. The United Nations Security Council has turned international criminal justice, which was intended to be a ‘global public good’ into a ‘club good’, preserved only for states such as Sudan and Libya while Syria is excludable. In addition, and as expressed by Mr. Alhaji Abdullahi Ibrahim,Minister for Justice and Attorney General of Nigeria, when he said that his delegation had:

…a reservation about the proposed role of the Security Council. While there should be a relationship between the United Nations and the Court under an agreement, he was opposed to conferring on the Council the exclusive right to determine when aggression was committed and to refer such cases to the Court. The Court should not be encumbered at the outset by avoidable political influences. The power of the Council under Chapter VII of the Charter of the United Nations should not extend to the Court.

In other words, it seems African States welcome the criminalization of acts of aggression as long as the United Nations Security Council is taken out of the equation. This possibly explains why the crime of aggression is also included in the African Union’s Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. However, the Protocol is finding it hard to attract the required ratification for it to enter into force. This raises questions around African States’ seriousness in providing viable alternatives to the existing "hegemonic institutions." The risk, though, is that by neither ratifying the amendments to the Rome Statute nor establishing a credible and effective regional criminal justice mechanism, African States remain unprotected from aggression from both their neighbors or global superpowers. Now is the time to act to add the missing link – as the proverb says – "a stitch in time saves nine."

[1] UN Doc A/CONF.183/13 (Vol.II) United Nations Diplomatic Conference of Plenipontaries on the Establishment of an International Criminal Court, Rome, 15 June -17 July 1998, Official Records Volume II, Summary records of the plenary meetings and of the meetings of the Committee of the Whole

[2] Resolution RC/Res.6 of the Review Conference of the Rome Statute, Annex 1 Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, 11 June 2010

[3] ICC-ASP/16/20Assembly of States Parties to the Rome Statute of the International Criminal Court Sixteenth session
New York, 4-14 December 2017 Official Records Volume I at p.85

[4] Ibid

[5] Sivu Maqungo, ‘The establishment of the International Criminal Court: SADC’ participation in the negotiations’ (2000) 9 African Security Review 42-53