Saturday, September 19, 2009

The Crime of Humanitarian Intervention?

(Part 4 in a series on Aggression and the ICC.)

As discussed in a prior post, draft amendments to the ICC Statute that would finally define the crime of aggression do not include any express exceptions for acts that might qualify as unilateral humanitarian interventions—uses of force without Security Council approval designed to liberate an oppressed people or to rescue nationals detained abroad. Indeed, even the Kosovo intervention of 1999—arguably the best example of a pure, i.e. non-pretextual, humanitarian intervention—would at first glance meet all the elements of aggression as it is current defined.

Specifically: The intervention was an air war consisting of an “attack [or] bombardment by the armed forces of a State against the territory of another State.” Although NATO possessed no territorial ambitions, the intervention did violate the territorial integrity of Yugoslavia (right) and, arguably, sought to undermine the political independence of the state (if not effectuate regime change). Most, although not all, scholars concede that the intervention was illegal under the Charter framework, but conclude that it was nonetheless legitimate and justifiable under the circumstances, as evidenced by the fact that it generated little in the way of censure from other members of the international community. (The non-rejoinder may also be explained, of course, by the disparities of power between NATO and others weaker or post-colonial states that might be wary of endorsing a broad right of humanitarian intervention). The intervention was a “manifest” violation insofar as it wrecked considerable damage on Yugoslavia, but it was not necessarily an arrant or flagrant one given lingering debates over its legality, morality, and wisdom. Potential high-level defendants—such as General Wesley Clark (below left), commander of Operation Allied Force in Kosovo, or Javier Solana (right), then-Secretary General of NATO—would not be immune from suit pursuant to Article 27 (“[t]his Statute shall apply equally to all persons without any distinction based on official capacity.”).

Whereas the concept of self-defense is well established under international law, the right to use force in defense of others is less so. Advocates of an emerging, or surviving, norm in favor of humanitarian intervention raise a host of inter-related arguments:

► These include textual arguments that attempt to carve out an implicit exception for humanitarian intervention from the language of Article 2(4) of the Charter by noting that states engaging in humanitarian interventions don’t seek territorial aggrandizement or to undermine the target state’s political independence—the sovereign values protected by the Charter.

► Advocates also raise moral arguments drawing on natural law theory and argue that the post-WWII period ushered in a new conception of sovereignty by which human rights values are now constitutive of statehood. As such, sovereign prerogatives of non-intervention and monopolistic territorial power are contingent upon states’ manifesting respect for human rights.
► Advocates also point to state practice (such as Kosovo) and opinio juris (such as the Responsibility to Protect initiative--see Marjorie Florestal's recent post on this concept) to support an emerging customary international law norm in favor of interventions on purely humanitarian grounds where grave violations are at issue and other efforts (diplomacy, sanctions, etc.) have failed.

Delegates drafting the definition of aggression are not unaware of the potential conflict between humanitarian intervention and the crime of aggression. Indeed, the Kosovo intervention occurred just as the Preparatory Commission was starting its work on issues left unfinished at the 1998 Rome Conference, including the Rules of Procedure and Evidence, the Elements of Crimes, and the definition of Aggression. Delegates have preferred to adopt a concerted silence on this point, so as to not jeopardize their forward progress in defining aggression by getting bogged down in already intractable debates over humanitarian intervention. As such, it will be for the various organs and constituencies of the ICC to determine how to address future humanitarian interventions. The ICC is thus poised to play a role as arbiter on the legality of humanitarian interventions.

This assumes, of course, that cases even make it to the Court. There are many ways in which the architects of just wars may be insulated from prosecution for the crime of aggression.
  • As noted in a prior post, it remains to be seen whether explicit approval from the Security Council, General Assembly, International Court of Justice, or Pre-Trial Chamber will be established as a condition precedent for investigation and prosecution.

  • States and the Security Council may fail to refer such situations to the Court pursuant to their Article 14 and Article 13(b) powers, respectively.

  • In the exercise of prosecutorial discretion, the Prosecutor may decide not to launch investigations proprio motu pursuant to Article 15 or may decline to go forward with referred cases in “the interests of justice” per Article 53(1)(c).

  • The Security Council may use its deferral powers (Article 16) to delay cases or, if it is granted a more robust “red light” power as is contemplated, it may stop such investigations altogether.
If delegates want to add a doctrinal barrier to prosecution, they could tinker with the mens rea element of the crime of aggression. As it stands, the definition adopts an objective intention/knowledge formulation: the defendant must intend to commit an enumerated act of aggression (bombardment, etc.) and must have knowledge of the factual circumstances that render the act a manifest violation of the Charter. The defendant need not, however, have knowledge of legal doctrine concerning the use of force. If drafters were to require proof of a surplus of intent—such as a specific intent or motive element to achieve an illegitimate territorial or political aim or even bad faith, malice, willfulness, or hostile intent—they might provide an additional barrier to prosecutions if they want to prevent the Court from entering into the humanitarian intervention fray and potentially altering the debate through its jurisprudence.

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