National Post (National Edition)
World leaders need to fortify international rule of law, not minimize it.
IT IS TIME FOR THE GLOBE’S LEADERS TO FORTIFY INTERNATIONAL RULE OF LAW, NOT MINIMIZE IT
On June 2, 2017, with storm clouds gathering in the Middle East, the Korean Peninsula, and the South China Sea, diplomats from around the world met at United Nations headquarters to strengthen the post-Second World War prohibition on aggressive war. Canada’s delegation sought to weaken it.
The move came just days before Foreign Affairs Minister Chrystia Freeland delivered her first major foreign policy speech, committing Canada to “the renewal, indeed the strengthening, of the postwar multilateral order” and “the principled use of force.” This rhetoric is squarely at odds with the Trudeau government’s actions in New York.
International Criminal Court member states, including Canada, gathered at the UN to plan for the December 2017 activation of the crime of aggression. A prosecutable crime of aggression will strengthen the prohibition on war by making leaders — rather than their populations — personally responsible for the wars they start. Had the crime of aggression been law in 1990, for example, Iraqi president Saddam Hussein could have been punished for the invasion of Kuwait (as U.S. president George H.W. Bush and U.K. prime minister Margaret Thatcher discussed at the time), rather than levelling crippling sanctions on Hussein’s already oppressed population. When Hussein was captured in 2003, he was indicted for international crimes including the invasion of Kuwait, but executed before the aggression case got underway.
The crime of aggression allows domestic and international courts to make principled, as opposed to political, determinations on whether a war is legal or illegal. It is based on the UN Charter and customary international law, which are binding on all states. Aggressive acts enumerated in the definition of the offence include invasion, bombardment, blockade and armed attacks on another state’s forces. If a state ratifies the crime of aggression — as 15 of our NATO partners have already done — and incorporates it into domestic law, its courts have the authority to prosecute rogue leaders. If they falter, the ICC could step in and prosecute perpetrators, as it currently can in cases of genocide, crimes against humanity and war crimes.
The crime of aggression would provide domestic and international courts with a powerful check on authoritarian power. Criminal accountability will not end war, but it may change the broader rules of domestic and international politics so that aggressive war is no longer such a tempting option. Even where countries do not sign onto the law or opt-out, an activated crime of aggression will provide opponents of authoritarian leaders with the legal leverage to curtail impulsive wars. Arguably, had aggression been a prosecutable crime in 2003, U.K. prime minister Tony Blair — who relied heavily on the legal advice of his attorney general — would not have brought his country to war in Iraq. A clear legal standard will provide a rejoinder for the leaders of states such as Israel that are unfairly maligned in political fora for legitimate uses of force, such as self-defence, in response to an armed attack on their territory.
The rule of law is under threat from authoritarian populists hostile to democratic checks on their powers. Presidents Vladimir Putin, Recep Tayyip Erdogan and Nicolás Maduro attack the media and bully the judiciary. Putin invades Ukraine with impunity and Kim Jong-un threatens a pre-emptive nuclear strike. Even in the U.S., there has been a steady accumulation of war-making authority in the executive over the past four decades, as U.S. presidents from both parties have learned to circumvent congress and the judiciary in their war-making decisions. Given the looming risk of a nuclear incident, domestic checks and balances on executive power may not suffice. It is time to strengthen the international rule of law, not weaken it.
Canada chaired the 1998 Rome Conference that established the International Criminal Court and facilitated the 2010 compromise in Kampala that planted the definition of the crime of aggression in the cannon of international law, alongside genocide, crimes against humanity and war crimes. Part of the Kampala compromise was a delay before activation to give states time to adjust. That adjustment period expires on June 26th.
Canada helped broker the Kampala agreement, yet, recently, Global Affairs invoked legal arguments that would narrow the scope of the law and limit its jurisdiction. Our delegation has marginalized Canada by arguing that the amendment process that garnered consensus in Kampala was faulty. It appears that our delegation may be preparing to sink the agreement — a move that is unlikely to help Canada win a seat on the UN Security Council. Sinking the agreement would also be a rebuke to the 15 NATO partners that have already ratified it. Our delegation’s current position would dial back the gains made in Kampala, provide avenues within the new regime for rogue leaders to use force as they please, and weaken an enforcement system that should be buttressed instead.
The enforcement of international criminal law has been more successful than most people realize, although it takes place domestically more than in The Hague. But even in The Hague courts, there has been decent success. Every one of the 161 Yugoslav war criminals indicted by the International Criminal Tribunal for the Former Yugoslavia was captured or killed. The Rwanda Tribunal had similar success. Once powerful presidents, prime ministers and vice-presidents have been brought before the ICC. The first aggression defendants at the ICC will likely be handed over by successor regimes, as Ivory Coast president Laurent Gbagbo was for other international crimes.
Canadian critics of the crime of aggression worry that it will put a chill on humanitarian intervention. In fact, established judicial procedures provide a tested means of distinguishing genuine humanitarian intervention from spurious selfinterest under the guise of “Responsibility to Protect.” Critics worry that the crime of aggression will destabilize international relations by impeding negotiated solutions to international disputes. Leaders who invade other states are the real threat to international peace, not the laws enacted to check them. Noah Weisbord, S.J.D. (Harvard), was a member of the ICC Assembly of States Parties Special Working Group on the Crime of Aggression. His book, The Crime of Aggression, will be published 2018, Princeton University Press.
(FREELAND’S) RHETORIC IS SQUARELY AT ODDS WITH THE TRUDEAU GOVERNMENT’S.