What most of the questions that Professor Jackson asks
at the end of his fourth soliloquy seem to have in common, is that they all
address how states deal with their politics from inside the state. Sometimes, peace
and conflict are determined by the policy structures and processes, as well as politics
and organizations from inside the state. It also has a lot to do with the
regime type, and the perception of the state’s leaders (and at times, their
religious leaders as well). A state’s past history of its security goals often
determines the dynamics of that state’s foreign and security policies. Security
relations between states are determined by their abilities to identify,
prevent, and resolve conflict. One of the most important aspects, I find, is the
degree to which state policy is a result of rational choice versus biases that
arise from bureaucratic, psychological, partisan, and ideological influences.
When Prof. Jackson asks whether there are ways of
strengthening an international law without abrogating state sovereignty
entirely, the question I would be asking is, whether states are interested in
strengthening the international law in the first place.
Take ICC, for
instance. As the International Criminal Court (ICC) was set to gain
jurisdiction over the crime of aggression (activated in July 2018), the US
government was opposed to it, saying that the perceived uncertainty around the
application of the crime of aggression could deter states from participating in
humanitarian interventions or military missions where the legal basis is
controversial. The State Department’s position in 2015, in Under Secretary of
State Sarah Sewall’s words, was that “we fear that one of the effects of
activating the ICC’s aggression jurisdiction will be to create new potential
obstacles to military action when it is urgently needed to save innocent
lives.”[1]
This amendment extends
the ICC’s jurisdiction beyond the crimes of genocide, crimes against humanity,
and war crimes. There are barriers to its application, interpretations of its
meaning, and the political interests involved however, making aggression difficult
to prosecute.
Some scholars involved
in the drafting process explain that only a war of conquest and a hegemonic war
would constitute a crime of aggression. In addition, the crime of aggression cannot
be applied retroactively, making the prosecution of some leaders, e.g. Russia’s
leaders for annexing Crimea in 2014 impossible. The crime also only applies
when committed by state parties or when the Security Council decides to refer it
to the court. Given that major powers like the US, Russia, and China are not
members of the court, wars started by the nationals of these states will likely
not be referred to the ICC.
Not even a situation
like the 2003 Iraq war would fall under the definition. While the US-led
intervention violated the UN Charter, the intention to destroy weapons of mass
destruction would make the violation less absolute. In which case, all
humanitarian interventions would be excluded as they do not constitute a
“manifest” violation. Aggression would only apply in the rare unambiguous case,
like the 1990 attack on Kuwait by Saddam Hussein’s’ forces.
The political
interests of UN member states make the application of the amendment to the ICC
a very complex matter. As with the crime of genocide, crimes against humanity,
and war crimes, the ultimate effectiveness of this expansion of the ICC’s
jurisdiction will be determined by the willingness of member states to comply. Given
the complexity and the considerations at stake, the application of the crime of
aggression in the foreseeable future is highly unlikely.
I agree with your point that the political interests of the UN member states can impede the application of certain amendments to international orgs. I expressed something similar in my recent blog post, stating that the very ways in which member states develop IOs serves to perpetuate and protect state sovereignty. In this way, it is difficult to imagine an international judicial arena that serves without bias. This matter is especially prevalent when it comes to state's protecting their military, weapons, and violence capabilities; it may be argued that, without these capabilities, a state is nearly void of sovereignty as it cannot protect itself or its citizens.
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