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Making aggression a crime – a century late, but better than never

By Kennedy Graham

Ninety-nine years ago the guns of August roared and the joys of World War I got underway.

When the dust settled, it dawned on people, well the victors, to try the Kaiser for aggression – “supreme offence against international morality and the sanctity of treaties”, to be precise.  In the event, he was granted asylum next door and died in his sleep.

Seventy-five years ago, the Third Reich marched into Sudetenland, and the joys of war were renewed.  When the dust settled again, the Axis leaders were tried for crimes against peace, wars of aggression, war crimes and/or crimes against humanity.  Some were convicted and executed.  But that was a one-off celebration.

Sixty-one years ago, the UN considered a draft treaty to establish an international criminal court.  The Cold War stymied progress.

Twenty years ago, the first ad hoc tribunal was established for the former Yugoslavia, followed by Rwanda, Somalia, and elsewhere.  Their jurisdiction, however, has been confined to crimes committed within conflict, not to resort to conflict.

Fifteen years ago, in an historic step, the International Criminal Court was created under the Rome Statute, independent of but related to the United Nations.  It commenced jurisdictional operation 11 years ago.  Today it has 122 States parties, including New Zealand.  The crimes that are currently justiciable, however, are the same as for the tribunals – crimes in bello – genocide, war crimes, crimes against humanity.  Those charged are the direct combatants – the fighters.

The Rome Statute also contains a fourth crime – an act of aggression.  Unlike the others, this is a leadership crime.  Heads of government, cabinet ministers, chiefs of defence forces, will be charged.

Three years ago, in another historic step, agreement was reached on making aggression a justiciable crime – through agreeing on a legal definition and on the relationship between the ICC and the UN Security Council.  Aggression will become justiciable once 30 parties ratify and a second, reaffirming, decision is taken in 2017.

Three months ago, the NZ Parliament agreed unanimously that New Zealand should become one of the 30 ratifying states.

Tomorrow, 27 September, in New York, a Ministerial High-Level Panel is meeting on the Crime of Aggression.  The aim of the Panel is to call upon all States to commit to ratifying the amendment that will, four years from now, make aggression a leadership crime.

Although the NZ Parliament has called upon it to ratify, the Government has not yet made any formal announcement.

The Prime Minister and Foreign Minister are both in New York.

One of them should spare a few minutes, drop in on the meeting, and make the announcement.

There are three global issues of greatest moment:

–          combatting climate change;

–          clearing the world of nuclear weapons;

–          making aggression a leadership crime.

We can make progress on number three, tomorrow, if we but wished to do so.  Just a matter of biting the bullet.

09/26/2013 – 14:24


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