Posted by Aaron Gray-Block; editing by Philippa Fletcher on 11 06 2010 | 1 comment
June 12 (Reuters) - Member states at a Kampala review conference of the International Criminal Court have agreed on how the court could investigate crimes of state aggression, such as an invasion or an attack on another nation.
Below are questions and answers on the move and what it means for the ICC, the world’s first permanent war crimes court.
HOW IS SUCH A CRIME DEFINED?
The crime of aggression was included in the 1998 Rome Statute which set up the court, listing aggression crimes along with genocide, crimes against humanity and war crimes as one of the four grave crimes the ICC has jurisdiction over.
It is broadly defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation.
WHAT WAS DECIDED?
Delegates decided that the Security Council, the ICC and states should all have a role in deciding whether an investigation into an act of aggression should take place.
But the compromise deal gives the court at least seven years before it would gain the authority to prosecute the crime of waging an aggressive war and it depends on further agreement between ICC member states before taking effect.
That agreement cannot take place before January 1, 2017.
WHAT ARE THE DRAWBACKS?
Allowing the ICC to prosecute state aggression risks involving the court in political disputes between states because a decision to go to war can be an inherently political decision.
Observers also say allowing ICC jurisdiction over aggression could arm critics who say the court is a political jurisdiction.
The United States, which is not a member of the court, is also wary its troops could be prosecuted for the use of force in trying to end war crimes the ICC is mandated to prosecute.
It has argued that there are uncertainties and ambiguities in the definition of the crime of aggression and that judges would find it difficult to reach a ruling.
Japan warned that the deal amending the Rome Statute that set up the court is based on a “dubious legal foundation” and raised concerns non-member states are shielded from being investigated.
Some critics say the court is too young to take on the political risks as it is still trying to fully establish itself.
WHAT ARE THE BENEFITS?
The deal gives a limited extension to the court’s reach by allowing it to prosecute the crime of waging an aggressive war.
Proponents said the deal avoided giving control to the U.N. Security Council over the court’s authority in respect to aggression crimes after earlier warning that giving the council control over such probes could reduce the court’s independence.
The deal also gives the court at least seven years to strengthen itself and prepare for its new powers.
Observers say the crime of aggression is based on well-established international law and if the ICC had the power to prosecute aggression this could serve as a strong deterrent.
Enabling the ICC to investigate aggression could benefit both powerful and weaker states by affording better protection against one state from being invaded while protecting a powerful state from being turned into an aggressor by criminal leaders.
While the court has the powers to prosecute war crimes, crimes against humanity and genocide, some observers say the court is incomplete if it does not have the jurisdiction to proseute state aggression, which often leads to war crimes.
HOW WOULD INVESTIGATIONS BE TRIGGERED?
The agreement stipulates that the U.N. Security Council would have first say in whether an investigation into an act of aggression should take place.
Other options at the Kampala conference for triggering an investigation had initially included a vote of the U.N. General Assembly, a ruling at the International Court of Justice in The Hague or a ruling handed down by ICC judges.
Eventually, delegates decided that either the Security Council, the ICC or state referral would have the power to trigger a probe.
Member states will need to decide after January 1, 2017 on the entering into force of the court’s new jurisdiction.
But state parties can also “opt-out” of allowing the ICC to have jurisdiction by lodging a declaration with the court. States that opt-out must reconsider the declaration.
(Reporting by Aaron Gray-Block; editing by Philippa Fletcher)