International Criminal Court / Crime of Aggression

Who Started the Fight?
By Noah Weisbord
The New York Times, May 3, 2010
"Making war, traditionally a prerogative of presidents and princes, may soon become an international crime. The states that have signed on to the International Criminal Court are on the cusp of adding 'aggression' to that list of crimes that it is empowered to prosecute, alongside genocide, crimes against humanity and war crimes. It would be a game-changer in international diplomacy, but it carries great risk along with its promise. The idea of prosecuting a country's leader for ordering a war that violates the United Nations Charter is appealing, until you imagine your own leader in the dock for a war that your countrymen all accepted as self-defense or humanitarian intervention. Just as one nation's terrorist is another nation's freedom fighter, one state's just war is bound to be another state's unjust war. Nonetheless, after a decade of negotiations, and against all expectations, the Assembly of States Parties to the ICC has produced a draft.
When asked, many diplomatic delegations explain the draft as the natural culmination of the legacy of the Nuremberg Trials, where Hermann Göring and other top Nazis were prosecuted by an international tribunal for planning, preparing, initiating and waging aggressive war against their neighbors. The Nuremberg tribunal found Göring and 11 others guilty of what was then known as the 'crime against peace,' famously declaring: 'To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.' Unfortunately, plans by the newly formed United Nations to create an international criminal court with jurisdiction over aggression were sidelined during the Cold War because the United States and Soviet Union couldn't agree on an enforceable definition. Now that the Cold War is over, is the Nuremberg precedent still relevant? The acts that amount to aggression in the ICC definition are familiar to any student of World War II: invasion, bombardment, blockade, attacking the armed forces of another state, contravening an agreement to station forces in another state, allowing one's territory to be used by another state to attack a third state, and the sending of armed bands. Saddam Hussein's invasion of Kuwait in 1990 is a textbook act of aggression. To be on the safe side, the drafters have deliberately defined aggression more narrowly than does customary international law. Under the ICC definition, an enforceable crime of aggression would only capture the most egregious violations of the UN Charter, leaving out -- to the consternation of many pacifists -- leaders implicated in 'gray-area' interventions. One example that many of the drafters had in mind was the NATO intervention to prevent ethnic cleansing by Slobodan Milosevic's forces in Kosovo. [...]"