Hamlet was depressed about the law’s delay. To this day, legal processes take a notoriously long time, and international ones take even longer. International lawyers, and the world, have been waiting at least since 1998 for the crime of aggression to be activated.
Writing international law admittedly takes much longer than domestic legislation. First the lawyers had to sort out a definition of the crime of aggression and decide on the elements of the law. Then 30 states had to ratify in order to activate it (Geoffrey Robertson, ‘At last a law that could have stopped Blair and Bush invading Iraq,’ Guardian, 16 July 2018. https://www.theguardian.com/commentisfree/2018/jul/16/law-blair-bush-iraq-hague-crime-of-aggression?).
On 17 July 2018 the international crime of aggression came into formal existence. In theory political and military leaders of one state can now be tried for acts of aggression against another, and can be punished by the International Criminal Court (ICC). In theory only however, because the ICC cannot rule on a case unless both states parties agree to its jurisdiction, on either an ad hoc or a compulsory basis. The United Kingdom, Australia and many other states accept the jurisdiction of the ICC, but the United States does not, having refused to ratify the Rome statue establishing the Court, which came into force in 2002. Much earlier, in 1986, the US withdrew from the compulsory jurisdiction of the International Court of Justice (ICJ) when Nicaragua sued America over mining of its harbours (Charles Sampford, ‘Issues and options: changing the Constitution and complying with International Law,’ How does Australia go to war? A call for accountability and change, Canberra: AWPR, 2015).
Adherence to international law becomes most fervent in the years following a war. All the Anglo-allies, and others, signed the Kellogg-Briand Pact of 1928, renouncing the use of war as a means of settlement of disputes. At the Nuremberg trials (1945-6), the chief US prosecutor made it clear that just because German leaders were the first to be charged with war crimes that did not preclude international law from responding to aggression by any other nations. Restrictions on the legality of war were included in Article 2 of the United Nations Charter in 1945, and in the NATO and ANZUS Treaties after World War II. In 1959 President Eisenhower moved to extend the rule of law to international affairs. The Charter’s words reappeared in the Treaty of Amity and Cooperation in Southeast Asia which followed the Vietnam War in 1976, and to which Australia, China and the United States are signatories. States commit aggression if they invade others without a covering Resolution of the UN Security Council, and if they are not acting in self-defence. From now on, individuals may commit crimes ‘against the peace’ if they direct armed forces in attacking another state’s ‘sovereignty, territorial integrity or political independence,’ Geoffrey Robertson points out.
Australia has yet to join the 35 states which have ratified it the ICC aggression amendment. On 16 February 2012, at the Pacific Outreach Roundtable on the ICC in Sydney, participants from Australia, Cook Islands, Marshall Islands, Palau, Papua New Guinea, Samoa, Tonga, Tuvalu and New Zealand agreed that it was desirable for all Pacific Island Countries to become States Parties to the Rome Statute and called upon them to consider acceding to the Statute as amended in 2010 (that is, including amendments on war crimes and on the crime of aggression) https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/.
Perhaps the government which in 2003 sent Australian forces into a war of aggression in Iraq – where they remain – would prefer different rules to apply to that, and also to our deployment in Syria. Different rules are indeed what John Howard wanted in March 2002 when Australia changed the terms of its recognition of the ICJ to restrict the suits Australia would accept to those from states which had accepted compulsory jurisdiction for 12 months (Charles Sampford, 2015). Howard apparently knew what was coming, a full year in advance of the Iraq war.
The crime of aggression could have made war criminals of Bush and Blair in 2003, says Robertson. But that is unlikely even for their successors now, because though the US doesn’t recognise the ICC and the UK hasn’t ratified the crime of aggression, more importantly both would veto a reference to their politicians or military people by the Security Council to the ICC. They will continue to behave as if nothing has changed. Australia, on the other hand, with no veto, may need to consider more carefully whom it is putting in harm’s way: no longer just the troops who invade another country illegally, but the generals who lead them and the ministers who send them. An investigation of alleged war crimes by Australians in Afghanistan is already in progress. If other cases emerge in Iraq or Syria and those accused have smart lawyers, they might challenge the legal basis for their presence there, and whether those responsible for it could be prosecuted for aggression. Particularly since the government so values the international rules-based order, Ministers might reconsider how it now applies to our wars of aggression.
Keywords; ICC, ICJ, Robertson, Howard, Bush, Blair
Dr Alison Broinowski FAIIA, formerly an Australian diplomat, is Vice-President of Australians for war Powers Reform and of Honest History. In 2015 she edited How does Australia go to war? A call for accountability and change, Canberra: AWPR.