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ICC makes waging war a crime
Following the devastation of the second world war, the International Military Tribunal at Nuremberg, established by the Allied Forces to try leading figures of defeated Nazi Germany, described aggressive wars waged against other nations as "[a] supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole".
Some 60 years later, history was made in the early morning hours of Saturday, June 12, 2010 in Kampala, Uganda, the site of the Review Conference of the International Criminal Court (ICC).
For the first time in the war stricken story of mankind, waging aggressive wars has become a prosecutable crime in international law and given precise meaning and teeth before the ICC - this on the strength of an unexpected consensus reached between member states of the Court (or in ICC terminology 'states parties').
The conference in Kampala concluded with the adoption of a resolution that at last defined the crime of aggression listed in Article 5 of the Rome Statute - the Court's founding treaty - using the UN General Assembly Resolution 3314 (XXIX) as a guide.
The resolution, in effect, criminalises the use of force (for example: blockades, invasions, bombardments) against another country in violation of the Charter of the United Nations; giving the Court the power to try future political and military leaders who plan, prepare, initiate or execute illegal wars, and to hold them (individually) criminally responsible for the commission of this new, and long-overdue, international crime.
Equally importantly, the Kampala resolution settled the conditions under which the ICC could exercise jurisdiction over the crime.
No Security Council monopoly
The final text of the agreement reflects a language of compromise - in part, proposed by Canada - needed to appease all sides of the debate on the highly complex and divisive issue of empowering the ICC to prosecute those who wage illegal wars.
It does not take much imagination to guess where the dividing line has traditionally been drawn on this delicate question.
In general, most of the rift has been focused on the level of nexus that should exist between the ICC and the Security Council in the prosecution of the crime.
Thanks partly to the inconsistent track-record of the Security Council and the politically driven exercise of the veto powers of the five permanent members of the Council, most Middle Eastern and African states, and indeed the majority of the Court's states parties, have insisted on limiting the Council's involvement.
The rationale behind this standpoint is nicely captured in the opening addressof the Iranian delegation, which was present at the conference in an Observer capacity.
Headed by Jamshid Momtaz, the former president of the UN International Law Commission, Iran aligned its position to that of Egypt's(which coincidentally attended on behalf of the non-aligned movement), and articulated the following:
• It is not legally convenient nor does it serve the cause of justice to tie the functioning of the Court to the decisions of the Security Council and, in a sense, leave the Court at the mercy of the Council. The Security Council is, by nature, a political organ and as such cannot act as a judicial filtering for the Court. The Security Council's practice in the past six decades indicates how dominant the political considerations of the permanent members have been in its decision-making processes. This includes those decisions made under Article 39 of the Charter, in particular the determination of an act of aggression.
Iran while recognising that the primary responsibility for the maintenance of international peace and security under the UN Charter falls on the Security Council, nonetheless adds:
•[This] does not mean, however, that the Security Council can play a determining judicial role for the Court. The prior determination of an act of aggression can facilitate the work of the Court, but the absence of such determination should not handcuff the Court. Otherwise, the raison d’être of the Court, as a judicial body, would be undermined.
It must be said that the anxiety over granting exclusive control to the Security Council is overwhelming shared by human rights NGOs.
Richard Dicker, the director of the international justice programme at Human Rights Watch captures this shared concern in the following statement.
The "ICC as a judicial body must be independent from the political interference of the Security Council that is a political organ that takes decision for political reasons".
On the other side of the debate, the most robust resistance to the activation of the crime has come mostly from the five permanent members of the Security Council.
Benjamin Ferencz, a former prosecutor at Nuremberg, and one of the leading advocates of the crime of aggression suggests this is because: "… the Security Council members do not want to surrender their powers to the ICC."
The permanent five - the UK, US, Russia, China and France - amongst other states argue that the triggering, and certainly, the classification of the Court's jurisdiction over the crime must reside on the exclusive powers granted to the Security Council under Article 39 of the UN Charter.
Turkey, a non-permanent Security Council member, had taken a somewhat similar position.
Compromise
Resolution criminalises the use of force against a country in violation of the UN charter [AFP]
The language of the resolution adopted in Kampala attempts to reconcile these two general schools of thought. And here is how:
Under the adopted resolution, the Security Council, after making a finding of unlawful use of force in breach of the UN Charter, can refer a situation to the Court pursuant to Article 13 (b) of the Rome Statute, whether or not the matter involves the acts of a state party.
This will ensure that the Security Council is the principal body that can classify the act as a crime of aggression, and trigger related ICC proceedings.
However if the Council fails to act within six months - say, due to a political gridlock - the Court can exercise its jurisdiction regardless and try nationals of a state party responsible for the crime of aggression on a state party referral, or when the ICC prosecutor commences an investigation on his own initiative.
In this last scenario, a prior authorisation from the pre-trial chamber of the Court is required.
These latter two options, offered as a compromise, counter the default monopoly that the Security Council would enjoy in classifying the offense and blessing it, as it were, for prosecution.
The resolution ensures that in the event the Security Council does not act, the Court will not be hampered by this inaction.
The resolution's limits
The resolution adopted in Kampala does have conditions attached to it.
For one, the newly adopted crime of aggression does not directly apply to non-state parties. It is worth recalling that major global players like Russia, China, US, Israel, Iran to name but a few are yet to become states parties.
The resolution also places restrictions on when the crime will have operative effect.
The ICC will not be able to exercise jurisdiction until at least 30 states parties have ratified the new amendments (likely to occur without difficulty).
Further, the states parties will have to wait until January 1, 2017 to activate the jurisdiction of the Court over the crime.
These are of course temporary hurdles before the crime is given full force of the law.
There are, however, other limitations.
Given that the Rome Statute is an international treaty entered into voluntarily between states, the Court's states parties can declare themselves exempt from the application of the crime (except for instances where the Security Council has referred the case to the ICC).
Additionally, the Security Council can pass a resolution deferring an investigation or a prosecution under Article 16 of the Rome Statute on grounds that they are injurious to international peace and security - such resolutions must, however, be revisited every year.
Regardless of these restrictions, make no mistake what transpired in Kampala is a tectonic step forward towards the fulfilment of a more refined international legal order where the rule of law is venerated and applied universally.
The inclusion of the crime of aggression in the arsenal of prosecutable offences of the ICC is a fundamental game-changer in global governance, forcing behavioural adjustments to the historical practice of waging war as merely "the continuation of politics by other means".
It is at this stage a fait accompli, and the world is better for it.
Significance for the Middle East
It is time for Middle Eastern countries to partner up with the ICC [AFP]
Broadly what does this development signify for the Middle East?
First, it demonstrates the truly international nature and independence of the ICC, where states parties can, on an equal basis, play a decisive role in shaping the future direction of the Court.
Unfounded misperceptions about the Court that prevail in the Middle Easthave to date prevented the region from reaping the benefits of ICC membership and protecting the human rights of the Middle Easterner.
In view of the tremendous losses suffered in the region through past wars and lapses in human rights protection at the national level, and with more conflicts projected to be on the horizon, it is only reasonable for states in the Middle East to ratify the Rome Statute and become states parties.
Apart from the deterrent dividend that being a member of the Court could yield by potentially changing the calculus of would be aggressors (that is strategic power), ratification would also mean empowerment and legal remedy in the event that crimes under the jurisdiction of the Court are committed.
At this juncture, the ICC boasts 111 states parties.
Of this number, the only Middle Eastern country that is a state party is the Hashemite Kingdom of Jordan; a peculiar fact given that the region has been the stage of countless conflicts and human rights violations, and its states, the victims of numerous instances of aggression.
The ICC, it has been said, "is a kind of a sword of Damocles for those who admit a possibility of achieving political goals by committing mass murders, extermination and violating international law" - these are words, tellingly uttered by the Russian delegation at the commencement of the conference in Kampala.
It is past time to partner up with the ICC, and bring the culture of impunity in the Middle East to an end and assist the Court to achieve its notable mandate.
Human beings, Middle Easterner or other, should not be condemned to have their fundamental human rights trampled upon, with the consolation that they may have tranquility and recourse in death in the realm of the divine.
Fatalism and unwarranted suspicions towards the Court must give way to more informed decision making and dexterous action.
We are living at a turning point in history where the deficits of the past are slowly giving way - through friction, trial, courage and sacrifice no less - to a more aligned and balanced relations amongst states.
We are not there yet by any means, but the velocity of change has been fixed towards a more enlightened path for humanity.
It is hoped that Middle Eastern states, and generally all states currently looking to the Court from the sidelines, recognise that the ICC is an institution emblematic of this new century; one that is fit and equipped to function - independently and impartially - in this newly emerging global arena.
After the first world war, the former US secretary of state Charles Evans Hughes - a forgotten giant of his time from the romantic era of US influence in the world - stated the following in a speech presented in 1923: "War should be made a crime, and those who instigate it should be punished as criminals."
Almost a century later, Kampala 2010 became the embodiment of these prophetic words.
We have much to be proud of. Yet the quest for peace and international rule of law is long and fraught with enumerable obstacles; but to march forward we must and collectively.
Senate pushes White House to sign treaty on land mines
More than two-thirds of the Senate is urging the Obama administration to consider signing an international treaty that bans land mines, reviving a dormant campaign from the 1990s that left the United States divided from its closest allies.
Sen. Patrick J. Leahy (D-Vt.) said in an interview Friday that 68 senators had signed a letter to President Obama to support a "comprehensive review" of U.S. policy on land mines. The letter is an indication that there are enough votes in the Senate to ratify the treaty -- at least 67 would be required -- if Obama signs the measure, which has languished in Washington for a decade.
"We want to show we have enough people to ratify a treaty," Leahy said. "I think there's an excellent opportunity that we'll finally do it."
The pressure from Congress leaves the White House in an awkward position as it tries to navigate between Obama's desire to work closely with allies on security issues such as nuclear disarmament, while at the same time listening to advisers at the Pentagon, many of whom are leery of such campaigns.
The mine ban treaty was the result of a grass-roots movement championed by celebrities, including Princess Diana, and ordinary citizens such as Jody Williams, a Vermont native who won the 1997 Nobel Peace Prize for her role as founding coordinator of the International Campaign to Ban Land Mines. About 5,000 people a year -- the majority of them civilians -- are killed or maimed by mines scattered across 70 countries.
Neither President Bill Clinton nor President George W. Bush signed the treaty, which was negotiated in 1997 and took effect in 1999. Their rejections left the United States at odds with more than 150 countries that embraced the accord, including every member of NATO.
The treaty prohibits the manufacture, trade and stockpiling of land mines. The United States has not used anti-personnel mines since the Persian Gulf War in 1991 and stopped producing them in 1997, but the military keeps about 10 million of them in reserve.
In November, State Department spokesman Ian Kelly announced that the Obama administration had decided against signing the treaty, saying, "We would not be able to meet our national defense needs nor our security commitments to our friends and allies." But after Leahy and human-rights groups condemned the decision, the State Department said it would revisit the issue and conduct a broader policy review.
White House and State Department spokesmen emphasized Friday that the administration is in the midst of a comprehensive review, cutting across all affected agencies, that will not be completed for some months. But two senior U.S. officials speaking on the condition of anonymity indicated that the administration is actively looking for ways to come into compliance with the treaty without endangering national security needs.
"We are asking that if you come into compliance, what would be the costs and the benefits -- and if there are costs, how can they be addressed in other ways," one senior official said.
The official described the administration's review as "a herculean effort" intended to "cut through reflexive reactions" to the issue of eliminating land mines from the Pentagon's arsenal.
Officials also said they welcomed the indication of bipartisan support represented by the Leahy letter.
Another senior U.S. official, speaking on the condition of anonymity to discuss internal deliberations, said the administration is looking at what new technologies could be used to bring the United States into compliance with the treaty while also allowing it to respond to threats such as North Korea. Some military officials want to maintain the U.S. stockpile in case it is needed to slow an invasion of South Korea by the North. About 30,000 U.S. forces are stationed in the South.
The Pentagon declined to say whether it would support the treaty, citing the Obama administration's review. "It would be premature at this time to provide any statement until the review is complete," said Geoff Morrell, the Pentagon press secretary.
Leahy, who has fought for a land-mine ban for many years, said there was bipartisan support in Congress for ratifying the treaty. Ten Republicans have signed the letter to Obama, which Leahy said will be delivered to the White House next week. The lead Republican co-sponsor is Sen. George V. Voinovich (Ohio), Leahy aides said.
In November, Leahy criticized the Obama administration's initial decision to reject the treaty as "a default of U.S. leadership." Since then, he said, White House and State Department officials have left him with the impression that they are seriously considering adopting the treaty, especially if he can help deliver the votes in a Senate that is usually sharply divided along partisan lines.
"It's been a much more positive response than I've seen in a long, long time," Leahy said of his talks with administration officials.
Leahy noted that Obama has pushed for a global reduction in nuclear arms; ignoring land mines, he added, could undercut U.S. diplomacy on that front. "If we want to keep the high moral ground, then we have to do it," he said.
Although Clinton did not sign the international mine ban, he ordered the Pentagon in 1998 to develop alternatives to antipersonnel mines, with the goal of giving them up completely by 2006.
In 2004, in response to objections from the Pentagon, Bush adopted a different policy that permits the U.S. military to use sophisticated mines that are designed to self-destruct within a fixed number of days. The idea was to reduce civilian casualties from unexploded mines left on the battlefield.
At the same time, Bush set a deadline of 2010 for the U.S. military to end the use of antipersonnel or anti-vehicle mines that lack timers. Obama administration officials have said that they are on track to meet that deadline this year.
Neither China nor Russia has ratified the international mine ban treaty. Human rights groups say there is little pressure for them to do so as long as the United States doesn't sign.
Visible from space, deadly on Earth: the gas flares of Nigeria
There is an ominous new arrival in the tropical forest outside Yenagoa in the southern Nigerian state of Bayelsa. It travels on black metal stilts above the green canopy before sinking into a concrete bunker where, when the bulldozers and cranes have finished work, millions of cubic feet of natural gas will be pumped before going up in smoke.
Shell's Opolo-Epie facility is the newest gas flare in the Niger Delta. And it gives the lie to claims from oil multinationals and the Nigerian government that they are close to bringing an end to the destructive and wasteful practice of gas flaring.
"This is environmental racism," said Alagoa Morris, an investigator with a local group, Environmental Rights Action, who regularly risks arrest to monitor activities at the heavily guarded oil and gas installations. "What we are asking for is that oil companies should have to meet the same standards in Nigeria that they do operating in their own countries."
Melbourne, Australia, to Host Sixty-Third United Nations DPI/NGO Conference
United Nations Under-Secretary-General for Communications and Public Information, Kiyo Akasaka, and Australian Minister of Foreign Affairs, Stephen Smith, have jointly announced that the sixty-third United Nations Department of Public Information/Non-Governmental Organization (DPI/NGO) Conference will be held in Melbourne, Australia, from 30 August to 1 September 2010.
The United Nations DPI/NGO Conference is the premier non-governmental organization event at the United Nations. It will be the first time Australia hosts a United Nations event of this size and only the third time that the DPI/NGO Conference has been held outside of United Nations Headquarters.
Each year this Conference brings together hundreds of non-governmental organization representatives from around the world to focus on a topic of interest related to the work of civil society and non-governmental organizations in collaboration with the United Nations. The 2009 Conference took place in Mexico City and focused on disarmament.
The 2010 Conference will focus on global health as it relates to the Millennium Development Goals, an issue of importance to both the Government of Australia and the non-governmental community.
Health issues are central to the Millennium Development Goals, which have been internationally accepted as the road map for development. Some of the key issues addressed by the Millennium Development Goals include Goal 4, reducing child mortality; Goal 5, improving maternal health; and Goal 6, combating HIV/AIDS, malaria and other diseases.
As host city, Melbourne, will showcase many of Australia’s premier medical, neuroscience and biotechnology research institutions. It is one of the great multicultural cities of the world and has always been an important meeting place for events of social, educational and cultural significance.
The Conference will be organized in partnership between the United Nations Department of Public Information, the NGO/DPI Executive Committee and the Government of Australia. A major aim of this year’s Conference is to attract participation from non-governmental organizations from the Pacific island States and other countries in Asia.
In December, an initial planning mission led by Eric Falt, Director of the Outreach Division, United Nations Department of Public Information, and Mary Norton, Chair of the Conference, visited Australia and held consultations with both Government representatives and leading members of the non-governmental community. The team also visited and identified the venue for the Conference.
In January, an Australian Convenor was selected to coordinate non-governmental community efforts in the country in cooperation with the New York-based Co-Chairs of the Conference. He will soon visit New York as the planning process begins in earnest for the late August Conference.
The United Nations DPI/NGO Conference will be a major event in the 2010 United Nations calendar and will occur only weeks prior to the start of the sixty-fifth United Nations General Assembly and an Millennium Development Goals Summit called for the occasion.
For additional information, please contact Maria-Luisa Chavez, Chief of NGO Relations in the Department of Public Information, at +1 917 367 7022.
UNA-USA Members' Day at the UN is on February 19th, 2010
For close to ten years, UNA-USA has hosted an exclusive members’ event at UN headquarters. Every spring, UNA-USA Members Day at the United Nations provides an opportunity for UNA-USA members to attend special briefings and panel discussions on the most pressing issues on the UN’s agenda. Members Day participants come from UNA-USA chapters and divisions, YPIC and Student Alliance groups and members of UNA-USA’s Council of Organizations.
From global health to human rights to the spread of democracy, equitable development and international justice, guest speakers shed light on both the challenges and opportunities faced by the United Nations system in today’s fragmented world. Guest speakers include top UN experts from the United Nations Secretariat and UN agencies, the diplomatic and academic communities, and other UN headliners. Source
Friday, February 19, 2010
9:30 a.m. to 4:30 p.m.
United Nations Headquarters, New York
October 22, 2009: President Issues UN Day Proclamation, Calls for Global Cooperation
The White House has issued President Obama's official proclamation of October 24, 2009, as United Nations Day, to be observed with appropriate activities commemorating the 64th anniversary of the UN's founding.
United Nations Day provides an opportunity for all Americans to reflect on the UN's unique mission, its work in support of international peace and prosperity, and the lead U.S. role in creating the organization.
But we can do more than simple reflection. The UN has condensed a few points for all UN chapters and its members to better understand what President Obama’s first visit to the General Assembly and Security Council accomplished. Read it here.
In his proclamation, the President states, "Now is the time for all of us to assume our share of responsibility to meet global challenges." You can help by telling your representatives in Congress about the importance of U.S. engagement at the United Nations.