LAW. NOT WAR.
Benjamin B. Ferencz

Article

A New Approach to Deterring Illegal Wars

By Benjamin B. Ferencz
published:August 2011

What Really Happened at Kampala

It should be recalled that after millions of innocent people had been killed in World War Two, everyone prayed for a more peaceful future. In the name of "WE THE PEOPLES", the primary goal of the United Nations Charter signed on 25 June1945 was "to save succeeding generations from the scourge of war." Pursuant to an Agreement in London on August 8, the four occupying Powers established an International Military Tribunal (IMT) in Nuremberg to try leading perpetrators of Nazi crimes. The court was composed of prominent jurists from the US, USSR, UK and France. In his moving opening statement on 21 November, Chief Prosecutor Robert M. Jackson, on leave from the US Supreme Court, warned that if law was to serve a useful purpose, "it must condemn aggression by any other nations including those who sit here now in judgment." On October 1,1946 , the IMT handed down its detailed decision. "To initiate a war of aggression", said the learned judges, was "the supreme international crime" . It was hoped that malevolent leaders might be deterred from launching future illegal wars. Yet, it soon became apparent that many powerful nations, including the four that sat in judgment, were not prepared to give up their perceived sovereign right to go to war whenever their leaders felt it was in their national interest. The promise of Nuremberg remains unfulfilled.

After decades of wrangling by UN committees, it was finally agreed, at a conference in Rome in 1998, that an International Criminal Court (ICC) would be created to try key persons for genocide, war crimes, crimes against humanity and aggression. However, the court could not exercise its jurisdiction over "the supreme international crime" until amendments were adopted defining that offense, consistent with the UN Charter. The five permanent Security Council members were not prepared to yield any of their responsibilities or privileges. Arguing that the crime had not been defined seemed a plausible justification for inaction. Committees resumed debates. A dozen years later, how to deter aggression still remained unresolved. As mandated in Rome, the issue came to a head at a Review Conference in Kampala, Uganda in June 2010. Since the definition had been debated for more than half-a-century, the Delegates in Kampala were able to agree on a new formulation built on an earlierGeneral Assembly consensus in 1974. No longer could the canard again be raised that aggression had not been defined.

Lawyers are very skilful in finding ambiguities in texts they do not wish to accept. The Rome Treaty seemed clear in Article 121 that amendments would only bind those states that agreed to be bound. Requests for further reassurances or clarification would always seem reasonable. Not content to rely on ICC judges to determine the meaning of the terminology, Kampala delegates submitted various alternatives. Unable to reach accord, they finally did what they had done in Rome in 1998; they postponed the issue again. By way of compromise, a few more hurdles were added and it was agreed that the question whether the ICC could exercise its jurisdiction over aggression should again be postponed for reconsideration at some unspecified future date; no sooner than 2017. Many arguments against activating ICC jurisdiction over the crime of aggression seemed designed to disguise the sad truth that some powerful states still preferred war to law.

A New Approach

Criminologists will generally agree that one of the most effective ways to deter crime is to let perpetrators know in advance that they will be held to account in a court of law. To assure them that they will not be brought to trial is more likely to encourage than to deter the conduct you are trying to prevent. As we have seen, the world community still remains divided about requiring aggressors to face the bar of international justice. Persons in high authority who knowingly and intentionally launch the horrors of illegal war should not be allowed to remain immune from prosecution. After more than 60 years of unsuccessful effort, a new approach is necessary.

1. ICC should punish illegal armed force as crimes against humanity

As long as the crime of aggression cannot be tried by the ICC other ways must be sought to end the impunity. The illegal use of force almost invariably results in actions that should qualify as crimes against humanity. Whether armed force is legal or illegal is basically governed by the UN Charter that binds all nations. Article 2(4) calls upon all Members to refrain from the threat or use of force inconsistent with the purposes of the UN. Article 51 recognizes the inherent right of self-defense against an armed attack .Chapter VII allows the Security Council to authorize armed force when the Council considers it necessary to maintain or restore peace. In short, if the use of armed force was not in self-defense or authorised by the Security Council it is illegal. Genuine humanitarian interventions may mitigate the punishment and all circumstances and moral justifications must be taken into account by prosecutors and judges. But no person or nation should be allowed to take the law into their own hands.

What the crime is called should not be decisive. The international tribunals at Nuremberg, for example, referred to aggression as "CRIMES AGAINST PEACE". The term "war" appears only once in the UN Charter, which speaks about "armed force". "Genocide" is the first crime listed in the ICC Statute, although it could easily have been subsumed and included under "crimes against humanity". If aggression had not been relegated to special committees, armed force prohibitions could also easily have found a place on the list of crimes against humanity. The fundamental right to life is heralded in all human rights conventions. What matters more than the title of the crime is the substance. Keep in mind that the basic goal is to deter the unlawful use of armed force that kills or maims countless innocent men, women and children. Deterring war should not depend on nomenclature.

To be sure, the ICC cannot convict anyone of crimes against humanity without proof of "a widespread and systematic attack directed against any civilian population, with knowledge of the attack". Modern warfare makes mass killing of innocents unavoidable. One cannot persuasively argue that where large scale civilian casualties were foreseen and inevitable there has been no crime because innocent victims were not the primary target. Surely, illegal force deserves as much condemnation as "murder", "severe deprivation of fundamental rights" or similar atrocities listed in the ICC Statute. The illegal use of massive force should be punishable under the existing category of "Other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health." The Prosecutor would have to prove beyond doubt that the accused held a position of high authority, played a key role and intended the foreseeable consequences. In contrast to charges of aggression, the Security Council has no prior role to play concerning crimes against humanity .

2. National courts should criminalize the illegal use of armed force.

The new Kampala consensus definition of aggression, after many decades of consideration, spells out the parameters of what constitutes an illegal use of force. New domestic legislation can simply specify that the crime of aggression, as defined by consensus at the ICC Review Conference in Kampala in 2010, shall be punishable when committed on their territory or by their nationals. Nothing more is needed than such incorporation by reference. At the same time, charges can also brought under the heading of crimes against humanity.

New domestic criminal statutes can also formulate their own texts, such as:
“Persons in position of high authority responsible for the illegal use of armed force in violation of the UN Charter, knowing that such action will unavoidably and inevitably kill large numbers of innocent civilians, shall be subject to prosecution for crimes against humanity.”

Despots will be put on notice. Even a limited deterrent effect would surely be worthwhile.

3. Bilateral and Regional coalitions should join in criminalizing illegal war.

The Supreme Allied Comamander in World War Two , Dwight D. Eisenhower, when he was President of the United states, warned: "In a very real sense the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law." Many nations, led by Japan and Germany, that had suffered the agonies of war, began to move in that direction in their post -war constitutions. Now more needs to be done to move from promise to reality. The French Schuman Plan for economic cooperation with Germany, its war-time enemy, led to the formation of the European Union that has become a major bulwark for world peace. Uniformity of criminal legislation is, of course, preferable and is a growing reality in many other areas of international cooperation. Short-sighted and misguided reasons of policy, politics or legal philosophy should not obscure the fact that unilateralism no longer has a place in the modern world. Diplomats should not hide behind the slogan "The trime is not yet ripe". The time is ripe right now!

What do we do now?

1. Ratify

According to the Kampala agreement, before the ICC can exercise jurisdiction over the crime of aggression, 30 States Parties must ratify or accept the amendments. Since the compromises were reached by consensus after much travail, it is not unreasonable to anticipate that the hurdle will be overcome. Failure to do so would mark Kampala as an exercise in futility or duplicity. Obtaining the necessary 30 acceptances must therefore be the first priority of those who really care about deterring war.

2. New Help and New Means

Experience suggests that relying in old methods is not likely to produce quick results. Man's capacity to destroy life on earth increases incrementally and the race between civilization and disaster will need some faster runners. Fortunately, new means and methods are on the horizon and must be mobilized to protect humanity. Global communication networks can reach out to people everywhere and help them to understand that a more peaceful and humane world is indispensable. For the safety of the brave young people who serve in the military, a "peace ethic" must replace the prevailing glorification of military might. It is not merely a matter of life and death but of economic survival that affects everyone.

The advent of new and miraculous means of instant communication offers a worldwide educational network never previously conceived. Perhaps the dissemination of truth will prove a more useful weapon than the costly and destructive instruments of war. International laws, courts, and a system of effective enforcement are still in their earliest stages if evolution. A matrix of countless social and organizational changes is needed. Every effort must be made to mobilize the younger generations to support the rule of law as their best safeguard. The international criminal court was a great historical achievement designed to encourage peaceful rather than violent resolution of conflicts. Those who hold the destinies of "WE THE PEOPLES" in their power must also be made to recognize, through the deterrent power of criminal prosecution, that law is always better than war.


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