Tuesday, July 17, 2018, marked a historic moment.
For 35 countries that have chosen to do so, committing aggression with their armed forces will become an individual crime for their leaders, justiciable in their domestic courts or in The Hague.
New Zealand is not among this first group, but it can join them any time by a constitutional act of ratification.
On October 24, 1945, aggression against another country was made illegal under the UN Charter. But that has always been a matter of state responsibility. If aggression or breach of the peace occurs, the Security Council may authorise military force in response. The clearest example was Iraq in January 1991, forced out of Kuwait after invading it in August '90.
But Saddam Hussein was not convicted for aggression against Kuwait. He was tried in a domestic court for crimes against humanity through his treatment of Iraqi citizens in the '80s. Back in 1990, and indeed 2004, when he was prosecuted, aggression was not an individual leadership crime.
The Nuremburg and Tokyo trials had convicted fascist leaders in the 1940s, but these were one-off judicial courts, and so the UN era commenced with no permanent court for individual crimes. An effort in the 1950s to negotiate a permanent court to assert jurisdiction over individuals failed through bipolar tensions of the time.
In 1989, Trinidad and Tobago persuaded the UN to return the item to its agenda. With Canadian, EU and broader support, negotiations recommenced, and within a remarkably short time the Rome Statute of 1998 established the International Criminal Court.
Four crimes are identified: genocide, war crimes, crimes against humanity and aggression. The Court came into existence in July 2002. From then until today, it has exercised jurisdiction over the first three crimes.
But aggression was deferred until two requirements were met: a precise legal definition was necessary; and the relationship between the security council, with its political mandate for state aggression, and the court, with its legal mandate for aggression as an individual leadership crime, had to be agreed.
In 2010, a conference was held in Kampala at which, against expectations, agreement was reached on these two goals. The conference also agreed to have a reaffirming decision, by a two-thirds majority, to exercise jurisdiction over aggression no sooner than January 2017.
In December '17, this duly occurred with a decision by consensus of the ICC member states and, as a result, aggression became an individual leadership crime within the ICC jurisdiction on July 17 this year.
There are those who say that this occurrence is historically equivalent to the UN Charter itself. We agree. Leaders will be less inclined to commit to military force if they are likely to be held individually liable for their collective (cabinet) decision, than if their forces are simply liable to be pushed back.
The assertion of jurisdiction today is a relatively small step, in terms of its immediate magnitude. Of the 193 UN member states, only 123 are members of the ICC. The US, Russia and China, and other large states such as India, are not. But the UK and France are.
Of the 193 states, only 35 have ratified the Kampala Amendment and are thus becoming liable today for aggression as a crime. But of these, one is notably large and important in every sense (Germany). Others carry considerable influence (Austria and Belgium, Netherlands and Switzerland, Portugal and Spain, Finland and Poland, Argentina and Chile). Fourteen are Nato states, which will apply a new legal discipline on the collective use of force under the treaty.
Others, albeit small, have highly credible reputations (Costa Rica, Malta, Botswana, Samoa, Uruguay, Trinidad and Tobago). The smallest of all, Liechtenstein, has shown extraordinary commitment and skill in leading the movement.
There are a myriad of legal intricacies that will challenge policy-makers and lawyers for decades ahead: opt-in/opt-out; Security Council referral, prosecutorial discretion, the role of France and the UK as both ICC and Security Council members. But these have simply reflected the extreme sensitivity between the political-military and the legal dimension of our contemporary international relations as we grope our way from mid-20th-century thought into the 21st.
Should New Zealand join? Of course it should. If it is good enough for the German Chancellor and the Prime Minister of Samoa to be accountable under law for aggression, it is good enough for our own leaders. New Zealand signed on to the Kampala Amendment with other states back in 2010. Liechtenstein ratified in 2012, Germany in 2013. New Zealand could also have done so then. No reason to delay further.
In the NZ Parliament back in 2009, a member's Bill making aggression a crime was given a first reading debate. The penalty for a NZ leader could stretch to 10 years in prison, a sobering consideration. The Bill was voted down, but the vote was close: 64 to 58.
It is time for the Kampala Amendment to be brought into the House, and for that vote to be reversed.
Roger Clark is professor of law at Rutgers University, New Jersey. Dr Kennedy Graham is Director of the NZ Centre for Global Studies, Waiheke, Auckland.
