The Crime of Aggression under the ICC

Full Transcript

Welcome back to the Negotiators. A production of Doha Debates and Foreign Policy. I’m Femi Oke. This is our fifth season of the show and my first! I’m taking over host duties from Jenn Williams, who is back to her day job as Foreign Policy’s news editor. We’ll have eight episodes this season—each one focused on a different negotiation. Plus a bonus episode! So, lots coming your way. 

Let’s start in what might seem like an unlikely time and place – a football pitch in Kampala, Uganda in late May, 2010 where Ugandan President Yoweri Museveni is facing off against then UN Secretary General Ban Ki-moon.

Ban Ki-moon:  I like, I like to play football, but I never thought, I never expected that I would play with President of Uganda.

I recently got the chance to ask Zeid Raad al-Hussein about that day. Zeid is the President of the International Peace Institute and a  professor of the Practice of Law and Human Rights at the University of Pennsylvania. 

Zeid:  Well, it, you know, the funny thing is I missed that football game. Uh, and I’m glad that I missed it because I probably would’ve injured myself. I was flying to Kampala while the football game took place. 

As you might have guessed, the football match was not the main event. Zeid was flying to Kampala to take on a challenge that was much more difficult…and potentially perilous- Establishing the Crime of Aggression under the International Criminal Court.

The International Criminal Court was negotiated under the rules of the UN, but it is not part of the UN. It’s an independent criminal tribunal that prosecutes individuals for four distinct crimes: genocide, war crimes, crimes against humanity and the crime of aggression. 

But when the ICC was first negotiated and culminated in Rome in July of 1998, negotiators couldn’t agree to the details of the most serious of these crimes – the crime of aggression.  

Zeid MOVED: There was simply no time. That conference itself was a ginormous, colossal undertaking. And so it was decided at the end that we’d include it in the list of crimes. So we’d included together with genocide, war crimes, crimes against humanity, but just as a placeholder and then for it to be negotiated subsequently. 

Zeid [00:00:36] This, quite possibly, was the most sensitive, the most complex negotiations I can imagine, because it dealt with some critical issues of the utmost sensitivity to all states. Essentially, when the International Criminal Court was established, it required of all states to accept the fact that the highest authorities, presidents, prime ministers, kings, sultans. All of them would be subject to the jurisdictions or the rulings of an international court. I mean, when you think about how sensitive states are on matters of sovereignty. And here, here we were going so far, we were saying, look, in respect of certain crimes, I am sorry, I am, sorry, your sovereign right to immunity will not apply. And we’re asking you to voluntarily accept it. Voluntarily put yourself under the jurisdiction of the court. And then we’re going to go even further and say the supreme international crime of aggression, the supreme International Crime is going to be a leadership crime. In other words, it’s not all the minions who are going to accused. We’re looking at you as President X, Prime Minister Y, King Z, whoever you are, you have responsibility. It was by far the most complex and most difficult negotiations you could think of. I mean, and I’ve been involved in all of them, bilateral, sort of multilateral at a state level. And I was involved in negotiations in conflicts in the former Yugoslavia when I was much younger. This surpassed all of the complexity and in the stakes that were in play.

Zeid and his colleagues had been preparing for this negotiation for twelve years – and they had a very particular strategy when it came to who would be taking the lead.

Zeid [00:02:35] I was the first president of the assembly of state’s parties, all the countries that had ratified. And then I asked Ambassador Christian Wenneweiser of Liechtenstein to chair what was called the Special Working Group on Aggression. And we called it special because we didn’t want just the 60 or so countries that had joined the court at the time. We wanted everyone, including, you know, the U.S., France, everyone, basically, to be part of it. And so I appointed him to be the chair. And for three years from 2004 to 2007, he embarked on a brilliant sort of series of almost work throughs at Princeton University, where they began to divide everything into themes and look at all the different sort of formulations and permutations. And when he got, we were getting close to 2010, which was the time of the review conference, we switched. He was going to be the president of the review conference. So then he appointed me to be the chair of the special working group and then the working group in Kampala. And this was critically important because the people who were supporting him then were supporting me. So we sort of felt confident. You know, we’d been mediating and chairing meetings for a very long time, the two of us. We sort of felt confident we could get somewhere. But the exact sort of dynamics of how we would get there was still to be known.

Femi [00:04:38] You’re going into the negotiations aid and there were three major issues to figure out. What were they?

Zeid [00:04:48] Well, the first issue was establishing the definition of the crime of aggression. What does that crime actually look like? What is it? And once establishing it, drawing a distinction between an act of aggression, which is something a state would commit, and a crime of aggression, which is the individual within that state who’s authoring and executing the crime. So that’s the definitional part. And then there was the grounds for the exercise of jurisdiction. So in what context then would the court exercise its jurisdiction over that crime? And the third issue was the how to actually, what procedure to use in terms of getting the amendment through. 

MUSIC

We set ourselves the most impossible task of having two different approaches for the amendment itself. One which was the preferred for many countries in the global south, which basically didn’t allow for an opt-in or opt-out. It was essentially you ratify, but you needed seven eighths of states parties to ensure that the thing basically becomes live. And that was very high, but that was the preferred option for the countries of the global South. By and large. And then you had the other procedure which contained this devilish sentence which allowed for an opt-in. Basically you could opt- in or you could stay out of it.

So, I want to talk a bit more about the question of jurisdiction. One of the sticking points dealt with the role of the UN Security Council. The five permanent members of the security council, known as the P5, wanted to maintain their power to determine if an act of aggression had taken place. Was that the biggest challenge when it came to jurisdiction?

Zeid [00:06:38] Well, it was one challenge, yes. In the construction of the UN Charter, there was an article, Article 39, which specified that the Security Council has the right to determine an act of aggression. And the permanent members, so US, UK, France, Russia, and then later China, mainland China, joined the Security council, they saw this as their privilege. That the Security Council determines an act of aggression and that the security council has a special role. 

Zeid But we also had to answer the question of what happens if the council were not to discharge its duties. So we had to try and establish then the role for the ICC in the event that there was no action by the security counsel. So it was quite complicated. 

Zeid Christian and I had a lunch before we went to Kampala and we were going over all the material. And we sort of felt that on the definition of the crime of aggression, we were there. What was going to be extremely difficult was the grounds for the exercise of jurisdiction. And then the sort of the amendment procedure.

Femi [00:08:02] The night before the conference officially began, there was a speaker who spoke to the delegates. It was 90-year-old Ben Ferencz.

Ben Ferencz [00:08:12] I’m grateful to the Secretary General for coming and particularly after he’s had a hard day on the football field. Can you tell our listeners who he was?

Zeid [00:08:22] Yeah, so Ben was this remarkable lawyer who fought in the Second World War and was appointed by Telford Taylor, who was the US prosecutor in the 12 subsequent trials at Nuremberg. And Ben, who was very young at the time, 27 years old, was the chief prosecutor in the Einsatzgruppen. Case and the Einsatzgruppen were essentially the death squads committing the most barbaric and savage crimes against mainly of course Jewish populations in that part of Europe.

Ben Ferencz [00:09:05] When I confronted these mass murderers, I didn’t ask for vengeance, I didn’t ask to kill them, I asked for a rule of law which would enable all human beings to live in peace and dignity regardless of their race or creed.

Zeid [00:09:26] He then went into a private practice, but he was always calling for an international criminal court of this sort.

Ben Ferencz [00:09:34] I studied everything there was to read on the crime of aggression, and it was clear to me that war was a terrible thing. And how do you go about stopping that?

Zeid [00:09:50] Ben was there, feisty as ever. He was rather diminutive in size, but a huge character, a lovely man, and we all adored him. And he was always there. You know, we’d see him at breakfast, we’d seen him at lunch, because we were all in this resort together. And then he would sit there and give me an earful about all I needed to do. And so, but, you know, always jovial and cheerful. But tough, I mean tough if you need it to be.

Femi [00:10:23] I want to take you back to the first day of the general debate and reportedly there were several delegations supported fully, including the crime of aggression in the Rome Statute. No one spoke against it. But that changed apparently on day two with a speech from France. What did France say?

Zeid [00:10:47] Well, it wasn’t simply France alone. The P5 in general were not happy with this whole exercise. And France and the UK were in a more complicated position than China, Russia, and the U.S. Because they had ratified the Rome Statute. It was a very difficult balancing act because on the one hand, they were permanent members of the Security Council who were trying to jealously guard their privilege under Article 39 of the UN Charter. And then you had the equally important responsibility of being a state party to the Rome Statute. And for them, they were in this sort of tricky position of having to balance those interests and trying to see whether or not their interests would be preserved.

Femi [00:11:37] Was there dissent from the beginning? Or did you get to day two and then some of the biggest challenges started to pop out?

Zeid [00:11:45] No, no, you have to understand that, first of all, in multilateral negotiations, you know, you think about how do you get 193 countries to agree on anything, 193, countries with their traditions and their constitutions and their legal limitations and whatever, and you have 193 legal teams. These are not just regular people. They’re prone to being argumentative and precise. And so you’re beginning. With a descent of 193 countries, and you’re trying to bring them together. It requires a huge amount of technique, an enormous amount of technology. Multilateral diplomacy is an art form, and practice at the highest levels, it’s breathtaking. It’s almost like magic. It’s miraculous to get them to agree, miraculous, because the idea that you just sit there and say, Okay, we all agree, that never happens. And so in the beginning, we knew the permanent members were going to be likely hostile to this whole exercise. We knew that France and UK were likely to be slightly less hostile because they were states parties. And so, you know, was there a possibility of peeling them away at some stage? And when would that stage be? And that’s sort of what in the end was the decisive.

Femi [00:13:12] The US was also going to be a challenge. Unlike France and the UK, the US has not signed on to the Rome conference so they did not have a vote. But the United States brought a very large contingent to Kampala and at the end of the first week, Harold Koh, Special Advisor to the US Department of State, stood up and presented a long list of reasons why he felt the question of aggression should be postponed entirely. Did that worry you?

Zeid [00:13:43] So, Harold Coe was a friend of all of ours. He used to be the Assistant Secretary of State for Human Rights in the 1990s. He was a very well-known and highly regarded Dean of the Yale Law School, very likable character, and he was leading a large US delegation. And there was a headline in one of the newspapers in Kampala. After he had given an interview, which basically said something like the negotiations will collapse or something along those lines. I think he thought highly unlikely that there would be a successful outcome to the negotiations. And the US certainly had some very deep concerns. But again, the whole process of creating a successful outcome is to anticipate basically all of that. And you, as you’re presiding over the negotiations, you’re constantly refining the text. So you do this in a number of ways. You have a conference paper that you present, you have non-papers that you’re present, and then where you give alternatives to issues, then the member states often will themselves form small groups and try and come up with a solution to those alternatives. And if there is a broad support, behind those alternatives, then you embroider it into your next conference paper. And I think I had three at the time that I was presenting and you keep the text rolling, you keep it moving and you Keep adjusting and you keeping working out the different formulations. So again, we sort of knew very well that the US would not be in favor. And there was one moment where Christian Weneveser, who was presiding, and I were, we were having breakfast and discussing something like this. When Harold, who is well known to us both, he was a friend and we liked him very much. And he sort of came up and he’s sort of half jokingly said, come on you two, you just sort it out, but sort it in a way that’s favorable to the U.S. And we started laughing and we were like Harold, there are 193 countries here. It’s not just the US. I mean, we always try and move toward a consensus, but it needed, we always want to have a strong consensus and not a weak consensus, you know, lowest common denominator type agreement that was of no interest to us.

Femi [00:16:23] We spoke about Ben Ferenc earlier and during the second week you asked Ben to address the delegates. Tell me about that.

Zeid [00:16:32] We were particularly stuck on one day and we were deep in the details and we needed a pep talk. And so I asked him to come up and speak to everyone. And he came up and he was his usual humorous self to begin with.

Ben Ferencz [00:16:47] Thank you very much, Mr. Chairman. I’ll be brief. As you can see, I’m a short speaker. No.

Zeid [00:16:55] And then he gave us a rocket, all of us collectively, told us to basically get on with it and stop mucking around.

Ben Ferencz [00:17:03] Do you think you’re going to get everybody to agree on every clause in every document and every sentence in connection with this complicated subject? I don’t think you can do it. I don’t think you get everybody agree on how to peel a potato or how to milk a cow. Complicated issue of this kind has been dealt with differently. And it can be done.

Zeid [00:17:28] You know, he wanted to have a strong amendment on aggression. He didn’t want delays. He didn’t want postponements. He didn’t want opt-ins, opt-outs. His position was essentially, we decided on aggression at Nuremberg and don’t dilly-dally so much, you know, and think of the importance of what it is of this moment.

Ben Ferencz [00:17:50] It’s not really a matter of little details, whether it’s manifest violation or major violation. This is not the point. The point is our murderers being told you can continue to murder and no one will try. I say no.

Zeid [00:18:04] Often you do need that because you’re so deep into the weeds and it becomes can be horribly technical and you’re trying to figure everything out and you need someone just to sort of essentially give you a few snaps across the face and say wake up, pay attention, look at what it is you’re doing and you you need to do the right thing.

You’re listening to The Negotiators. On each episode we look at one dramatic negotiation — through the lens of one of the participants. More after the break.

BREAK!

Femi [00:18:27] So by this point we’re early in the second week and you tell the delegates don’t make plans to travel on Friday. What did you know that they didn’t?

Zeid [00:18:38] So in any negotiation, you have to have a mastery of time. You have to be able to use the clock and you create energy for a practitioner of multilateral diplomacy. And again, it’s the hardest form. I’ve been in bilateral. Bilateral is easy compared to this. Multilateral, you’ll have to harness the energy in the room. So you, ideally you have positive energy. Everyone’s sort of agreeing. Everyone is converging. And it’s just delightful. And you sit there and you have your cup of tea and you’re just thinking, this is easy. But that hardly ever happens. Then you have negative energy, where everyone’s arguing, not agreeing. You know, sometimes it’s almost like fisticuffs. But that’s also good because that’s energy, right? It leaves you with something to work with. And you can harness the energy and the attention and the press is watching and the observers are watching. The non-governmental organizations are watching, and everyone’s watching, and that creates pressure on delegations, right? But you can also accentuate the pressure using the clock. You suspend the meeting. I suspend it for an hour or two. I then resume the meeting, give them only half an hour. I’m creating pressure. Basically, if they think that they can run out the clock with no agreement for those who don’t want one, we say, no, we’ll stay on. We’ll stay even if there’s no interpretation. We’ll stay on until three o’clock in the morning, and we’ll suspend the clock if we have to, or we’ll delay it. But it’s all a matter of technique, and you’re constantly refining, molding, refining molding using the clock. It’s an exhaustive process, because you have to examine every single angle, and you go with them. What they wouldn’t accept the previous week on a Wednesday, they will accept the following week on Tuesday, but only if you’ve traveled together.

Femi [00:20:34] You mentioned that peeling France and the UK away from the positions of the other permanent members of the Security Council was a decisive point in the negotiations. So when did that happen?

Zeid [00:20:49] So a very interesting thing happened. So we, I think it was the last day of the working group discussion, or maybe the second to last, the penultimate. There was a very clever Argentine, Brazil, Switzerland proposal that was put out. And there was a sort of another proposal put forward by Canada. And we had a long discussion in the conference chamber and it wasn’t clear where the room was heading. So we retired back to my room and a number of delegations came with me and we were sitting there just mulling over because sometimes when you’re presiding, when you are sitting up there, you don’t see everything and you need people to spot for you, to sort of notice things. And a lot of it goes back again to the psychological dimension. Is Country X objecting simply because the person is annoyed with you because of something you said or are they objecting because it’s something related to… An industry, a sort of more commercial concern, or is it something technical, and trying to figure it out. And so we went back to the room, and we were sitting there, and one of the delegates, and I think it was the German delegate, if I remember correctly, he said something like, did you notice that none of the permanent members spoke today? They didn’t ask for the floor. And all of us sort of thought about it for a second. Because it was highly unusual, right? In almost every discussion, one of them would say something, at least one of the, France, UK, China, Russia, or the US. And they were not saying anything. I didn’t see it. You know, I’m sitting there, chairing, I’m running through the list of speakers, I’m listening to what everyone’s saying, but I wasn’t paying attention to actually who was asking for the floor. And it was someone else who raised it and said, you know, wait a minute, wait, they’re not talking. And if they’re not talking, what does it mean? And then someone said, oh, they’re just waiting for us to fail. They’ve reached a stage where they don’t need to say anything because we’re still so divided. And so that night, the Argentines, Brazilians, Swiss and the Canadians created a single proposal. And they sort of essentially combined the two alternatives in terms of the amendment procedure, which began to clear the way for a breakthrough. And part of it was the negotiation initially with the UK. What would the UK need to get to that particular point where they could be brought on board? If we could tempt the UK toward us, as opposed to have them feel that they need to stick to the P5. Then we felt that we would be breaking the back of this thing. 

MUSIC

And I think it was the following night where it was the UK that was the first to jump across to the majority position. And then, you know, it left really France on its own. And you know I don’t know for sure. You’d have to ask one of the UK negotiators. But I was told subsequently that the head of the delegation really took it on their own authority to do that. And I have heard that Whitehall was not too pleased with the position that was taken. You know, it’s always easy when you sit within the confines of a capital, far removed from the negotiation, to say you should have, you know, stuck it out or you should’ve maintained a hard line. But when you’re there in a large conference and all these people watching and the media, it’s a lot of pressure to withstand. And I think all of us could identify with the loneliness, perhaps, of the UK delegation when it came to that decision. But we were grateful that the UK did make the break. And it was important that it started. You didn’t have the permanent members as a block solidly opposed to the outcome.

MUSIC

Femi [00:24:58] Let me take you to the last two days of the conference. So much to do, so much going on. What stands out? What do you remember? And why?

Zeid [00:25:10] So once I handed my sort of my material over to Christian, on the floor, it seemed like a big change that we were moving into the final stage and the pressure was mounting. In real terms, it wasn’t that much of a change because the people who were working with me then went to work for Christian himself and then I was part of Christian’s team as well. So I was still sort of in on it. Where we narrowed it down to position where we felt the majority is going to vote for. And if we call for a vote, it would be a very small minority voting against. You sort of sense that if 186, 187 countries can live with it and three or four are against, that’s fine. You reach the end and you can call for vote.

Femi [00:26:00] So we’re on Friday, final day of the conference. The morning session is canceled. What is going on behind the scenes?

Zeid [00:26:08] Well, at that stage, you’re preparing the final text and you’re also, Christian was working on his statements that he was going to give. You can always have surprises and you want to try and minimize those. So you make sure that the statements that you’re going to read out, that they sort of bottle the pressure and then you sort of open the bottle during the meeting and hope that delegations feel roused by the moment. And the need and the feeling that they’re going to do something important. And I think Christian was trying to, at that stage, create that sort of moment.

Femi [00:26:48] The plenary was reconvened, 10.30 at night by this time. Christian presents a final proposal. This proposal would delay the adoption of the amendment for seven years. Nuremberg prosecutor Ben Ferenc was especially dismayed by this.

Zeid [00:27:06] He was very unhappy, extremely unhappy, and he made it known. And I think also there was partly this thing, he was 92, he wanted to be alive when this thing entered into force. As it turned out, he lived to the grand old age of 102, and so he was alive when it did enter into force, but he was very happy with us, and he make it known, and then we had a little hiccup. Because the first delegation to take the floor and maybe you’re going to allude to this was a delegation of Japan. They took the floor, and we were like, oh, this may not go in a good direction. And he was a very distinguished Japanese ambassador. He was new to the process, so I don’t think many of us had met him before. But the tone of his intervention made us think, Ooh, this may go sideways.

Femi [00:28:05] Was that the part where the speech started with it is with a heavy heart?

Zeid [00:28:11] And yeah, I think I was sitting next to him because it was, you know, Japan, Jordan, in the alphabetical order, next to Japan. I was wondering whether I could switch off his microphone from where I sat. I say, Your Excellency, with my deepest respect, it’s middle of the night and, you know, we’re really not in the mood. No, I mean, I’m saying so jokingly. No, you know, listen, it’s every delegation’s right to speak. And if you have misgivings at the end, you can express them. You know, what you always worry about is if you’ve reached this stage and don’t forget this negotiation, I mean, had been going on for 12 years. Right. So it’s not like we just turned up in Kampala and, you know, three or four sessions and we said, okay, let’s vote. We had looked at and examined. Every angle to this issue, from every perspective, exhaustive analysis. I think in the case of Japan, you know, from their perspective, they had a concern and I think for the rest of us, the concern was that, you know, the Japanese ambassador will pull into many other countries and suddenly you have to reopen the whole thing and then extend beyond the weekend, but it didn’t happen.

Femi [00:29:35] The Japanese delegate began his speech with, it is with a heavy heart. But he then concluded with the revelation that Japan would not stand in the way of the consensus. What happened next?

Zeid [00:29:50] Well, I think I wanted to give him a hug. I can’t remember exactly because it is 15 years ago, but I, um, once that intervention had taken place, I, I think there were a few others, but we were sort of, we all realized that we had more or less accomplished what we had set out to do.

MUSIC

When we got the outcome, notwithstanding Ben’s sort of fury and, you know, bellowing. At us. We felt much relieved. I think we slept very soundly, all of us, that night, at least those of us who had been working on the text.

Femi [00:30:32] I have been present at a number of major negotiations after the deal has been agreed and I remember the atmosphere very clearly. People who look on the outside very bureaucratic are partying like it’s New Year’s Eve. I’m wondering about the mood after the amendment was adopted. What do you recall?

Zeid [00:30:56] Yeah, I think there was a huge relief. I mean, I remember we all went back to Christian’s rooms, the group, our group that had been working on this. We were quite exhausted by the whole thing. But as you said, I mean there was a sort of New Year’s Eve type of feel to it. Because these are excessively difficult issues, as I said, extremely difficult. And there’s a sort of a beautiful aspect to this, which reinforces the idea that we can all work together and solve complex problems together and do so sometimes with humor. Sometimes we need people like Ben to sort of, you know, shout at us and you need the pressure and the time pressure. But deep down within every negotiator is a sort desire to actually succeed. I would like to think, and you’d have to interview Harold Coe himself, that yes, he was a professional and he had the responsibility of representing the United States, but deep down within him, I wondered whether or not sometimes, you know, he felt, well, he did his best to stake out the U.S.’s position, but he was also involved in a process that largely succeeded. And I think, you know one takes pride in that.

Femi [00:32:19] The amendment was activated in 2018. This court still has quite limited jurisdiction over the crime of aggression. Would you describe what you negotiated in Kampala as a victory or in some other way?

Question re-track!

The amendment was activated in 2018. But to this day, no one has been prosecuted for the crime of aggression. Some suggested that Russian President Vladimir Putin should be held accountable for the invasion of Ukraine in 2022. But the jurisdiction of the court is still quite limited. And because Russia has not signed the Kampala agreement, Russian leaders cannot be prosecuted for the crime of aggression without a referral from the Security Council. There was an attempt to expand the jurisdiction of the court this summer, but that attempt failed. 

Zeid, would you describe what you negotiated in Kampala as a victory or in some other way?

Zeid [00:32:37] You know, every step forward is a victory, and clearly you saw the limitations when the Russian Federation invaded Ukraine, and so there was a call for the establishment of an international tribunal for the crime of aggression. But had we not negotiated it, it would have been equally bad. So every move forward, every steps forward is good. One has to, again, imagine how difficult it is to get… Countries to agree. And again, the fact that we can agree on anything is amazing. I think it’s amazing. And so it’s a matter of being on a voyage together, all of us together, traveling through the text together, the variations of formulations, the amendments, and then arriving at the destination together. And the destination may look to others as falling short, but we’ve moved some distance, and the next job is to move it further.

Zeid Raad al Hussein is the President of the International Peace Institute, which supports negotiations around the world. They’re our special partner for this season of The Negotiators.