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  September 19, 2010

The Int'l Effort to Criminalize War

Debate about "crime of aggression" at conference of jurists from international tribunals
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Benjamin B. Ferencz is a veteran of WWII who was also a Chief prosecutor in the 1945 Military Tribunal in Nuremberg. He has been consulting the International. He has been active in fighting for the establishment of the International Criminal Court and is the author of many books, among them Defining International Aggression-The Search for World Peace.

Richard J. Goldstone is a retired South African supreme court judge. He was also the chief prosecutor in the ad hoc tribunals for the former Yugoslavia and for Rwanda. Most recently, Judge Goldstone headed the UN Fact Finding Mission on the Gaza conflict and authored alongside Christine Chinkin, Hina Jilani, and Colonel Desmond Travers the mission's report, also referred to as the Goldstone Report.

At the end of August prosecutors from international tribunals such as those in Cambodia, Sierra Leone, Rwanda, and the Fmr. Yugoslavia met in Jamestown, NY for the 2010 International Humanitarian Law Dialogues. The discussion this year focused on the June review conference of the International Criminal Court in Kampala, Uganda. The conference has been long awaited since the establishment of the court in 1998. The main issue was the definition of the crime of aggression. Now defined, it awaits ratification, postponed to 2017. If the International Criminal Court is given jurisdiction to prosecute it, it would essentially make all acts of aggressive war (that is not self-defense) illegal. However, pressures from major military powers such as the US ensured the definition of the crime allowed for any state to opt out of it being used against them. The Real News' Lia Tarachansky spoke with Benjamin B. Ferencz who attended the Kampala conference in Jamestown and retired South African judge Richard Goldstone about the crime of aggression and the fight to include it into the International Criminal Court.


LIA TARACHANSKY, PRODUCER, TRNN: This is Lia Tarachansky with The Real News in Jamestown, New York, where today the 4th Annual International Humanitarian Law Dialogs is taking place. Behind me you can see the prosecutors from all the international tribunals currently going on, from the former Yugoslavia to Rwanda, Cambodia, Sierra Leone, including the International Criminal Court.

MICHAEL SCHARF, DIRECTOR, SUMMER INSTITUTE FOR GLOBAL JUSTICE: Now I'm going to turn the first question to Bill Pace, to ask him to explain the compromise that was worked out in Kampala.

TARACHANSKY: The main discussion here was the International Criminal Court's review conference that took place in Kampala, Uganda, in June. The international court was established in 1998. Its jurisdiction applies to any country where the victim or aggressor there agrees to join it. So far, 113 countries are signatories. The Court was empowered to prosecute three crimes: genocide, war crimes, and crimes against humanity. Along with these three, the crime of aggression was listed as the fourth but was not defined; therefore the Court couldn't prosecute it. Its definition was postponed to June's review conference, and it led to a week-long, heated debate. If adopted, it would essentially make all aggressive acts of war illegal, that is, wars not fought in self-defense. Some, such as the US delegation, argued against and managed to push for significant amendments, even though the US is not a state party to the Court. The American team consisted of Harold Koh from the State Department and Stephen J. Rapp, ambassador at large for war crime issues. Here Koh explains the changes the US managed to push for:

HAROLD HONGJU KOH, LEGAL ADVISOR, US STATE DEPARTMENT: The outcome protected our vital interests. The Court cannot exercise jurisdiction over the crime of aggression without a further decision to take place sometime after January 1, 2017. The prosecutor cannot charge nationals of non-state parties, including US nationals, with the crime of aggression. No US national can be prosecuted for aggression so long as the US remains a non-state party. And if we were to become a state party, we'd still have the option to opt out from having our nationals prosecuted for aggression. So we ensure total protection for our Armed Forces and other US nationals going forward.

TARACHANSKY: Benjamin Ferencz was a World War II soldier and worked as a prosecutor in the Nuremberg trials that led to the hanging of much of the Nazi leadership. Nuremberg was the first and only place where the crime of aggression was successfully prosecuted. He attended the Kampala conference and has been fighting to include aggression in the Court's jurisdiction.

BENJAMIN B. FERENCZ, CHIEF PROSECUTOR, NUREMBERG MILITARY TRIBUNAL: We argued for hundreds of hours whether it should be a "flagrant" violation of the Charter or a "manifest" violation of the Charter, but they said, okay, a manifest violation, that we'll buy. So we now have a consensus definition of aggression. Of course, in that consensus it says that if the Security Council decides it's not aggression, then it's not aggression, and if they decide that something else is aggression which isn't listed, so it is aggression. It says very clearly, if you don't want to be bound, you're not bound. It says so, several places. Security Council wrote that in all over the place. Very, very weak foundation, but it's there.


FERENCZ: Basically what it means is attacking another nation in violation of the UN Charter. The UN Charter prohibits the use of armed force except in self-defense or with approval of the Security Council in order to maintain peace. That's the basic definition. The amended version was the addition of one word.

TARACHANSKY: One hundred and thirteen countries are signatories to the International Criminal Court. One of its main criticisms, however, is that the biggest military powers, such as China, Russia, and the United States, are not, and therefore are not within the Court's jurisdiction. However, if the victims of their aggression are, they can still be held accountable. Another method by which non-signatories can be brought to trial is if the UN Security Council refers the case to the Court. However, the Council is a non-elected body of elite countries in the UN, where members have veto power. The Kampala Review Conference postponed the ratification of the crime of aggression into the Court's jurisdiction until at least 2017, and that is if 30 member countries agree then. What was achieved in Uganda was a consensus on the definition of the crime. The cases currently before the International Criminal Court include the Congo, Central African Republic, Sudan and Uganda. But the fight to expand the Court's jurisdiction is an ongoing long-term struggle. Before the Court came into being, ad hoc tribunals were set up on a case-by-case basis, such as in Cambodia, Yugoslavia, and Sierra Leone, and they are currently finishing up their work. These tribunals take up many years and cost hundreds of millions of dollars. Judge Richard Goldstone of South Africa was the chief prosecutor in the ad hoc tribunal for the former Yugoslavia and for Rwanda. He doesn't support the inclusion of the crime of aggression into the Court's jurisdiction, because in his opinion, instead of criminalizing war, it would overburden the Court.

RICHARD GOLDSTONE, CHIEF PROSECUTOR, UNSC CRIMINAL TRIBUNALS: Well, I was very relieved in a way, when I got to the Hague in 1994, that aggression wasn't on our plate. And, you know, in the case of the Second World War, the Nazi leaders were so clearly the aggressor that there was no argument. But that's unusual. If you take the Balkans, if you take Rwanda, there've been circles of violence in those regions. It would be a mistake to burden the prosecutor, save in clear cases, with aggression. I mean, we're looking at the protection of civilians, non-combatants. That's what war crimes are all about. And there's an important distinction between the rules that apply to how wars are fought, on the one hand, and whether it's lawful or unlawful to go to war in the first place.

FERENCZ: None of the big powers was prepared to subject their current entitlement to commit the crime of aggression to the judgment of an international criminal court. Every big nation that uses armed force says it's doing it for humanitarian reasons or for self-defense. The rest of the world say it's aggression or it's terrible. And no courts have decided. No nation will indict itself. Therefore, and particularly in the case of aggression, you need to have an international tribunal to decide it, of independent judges. We set up that tribunal and then didn't give it the power to act. Well, we'll suffer the consequences. Young people like you will die. I can't help you. I can only point out how foolish it is.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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