Bush and Blair to appear before the ICC?
Date: 23-06-2004
Author: Jean Flamme

The question is not so much whether the reasons to go to war, set forth by the so-called "partners", really existed.  The real question is whether the sovereign states which they represent had the right to attack another sovereign state (Iraq) and therefore whether the reasons they set forth could justify a war.


In the meantime we already know that these reasons have been the subject of lies, as the new Spanish Prime Minister, Mr. Zapatero, has stated.


We can expect from the Western Countries, who so eagerly display their flag of "civilization" and "democratic principles" that they adhere to a legal order, also and especially at the  international level, now that social and economic relations have become global.  Not to do so would mean that we are not out of the Middle Ages and should still be considered ‘Barbarians’.


This international legal order does exist. What does it say with regards to war? The term "aggression" dates back to the most ancient civilizations. The Chinese,  Egyptian, Assyrian-Babylonian, Roman, Ancient Greek and Hindu civilizations already tried to set rules about justifying war. Even the Koran contains references in that respect.


In modern times, this century old mental exercise has led to specific rules against aggressive warfare.  A number of international treaties are in line to this, among which the Charter of London of  August 8, 1945 and the Charter of the United Nations of 1945.

Furthermore, the Nürnberg trials introduced the principle of individual liability extended to physical persons convicted of having planned, prepared or fought an aggressive war.


The concept of “aggression” - the crime of aggressive warfare - was not directly defined in the UN Treaty.  It only appeared later in Resolution 3314 on December 14, 1974.

However, the Treaty does grant the Security Council exclusive authority to take measures, if necessary with force, to maintain or restore international peace.  One can therefore conclude a contrario that no other international body - and certainly no individual member state - is entitled to do so.  The Treaty only makes an exception for the inherent right to individual or collective self-defense. But here again, it is clearly stated that the Security Council has the right to take measures at any time, and that the country involved will have to abide by them.

‘Self-defense’ was obviously not the issue in the case of Iraq.


Legally only one conclusion can be drawn from all of this, namely that in last year’s  international context none of the UN Member States had any right to plan a war against Iraq, let alone to fight it.  Viewed in that light, the countries involved committed a crime – the worst crime in  international and humanitarian matters: putting international peace at risk.


The answer to the question whether said rules of international law were and still are applicable to the involved warwaging countries is undoubtedly positive. In signing the UN Charter they relinquished part of their sovereignty to that body.


The now notorious Belgian law of June 16, 1993 pertaining to the competence of Belgian Courts of Law in prosecuting serious violations of the international human rights, has been written off the internal Belgian judiciary system under pressure and intervention of the United States and Israel. Nevertheless this law was nothing else than a national confirmation of an already  existing obligation of any nation under international law, namely the aut dedere aut iudicare  principle.  This means that each country has an obligation to prosecute the author of an international crime  - thus being part of the international imperative rules of law (ius cogens principle) - or to deliver him to another country or body of international law.

The crime of agression is undoubtedly part of this ius cogens principle.  Therefore one could assume that the ‘universal competence’ of any national and thus the Belgian judge remains. 


However, it is not likely that a country – and certainly not Belgium which is already considered a very bold pupil by George Walker Bush and his clan – will comply with this obligation. 


I have my personal doubts about the competence of Belgian justice when it comes to judging crimes like those Ariël Sharon has been accused of.  The criminal court of Brussels was not the right forum either for the Rwanda trial.  How can a Belgian jury understand and judge  crimes which were committed in a totally different cultural and historical context?  This is almost absurd.  The right forum for those cases is of course the national courts of the country where the crimes have been committed or the International Criminal Court that has just been created.  The United Nations had already created the ‘ad hoc’ courts for Rwanda and Yugoslavia, be it with too limited competences. 

The Statute of the International Criminal Court does recognize the crime of ‘aggression’ and the court is therefore competent in that matter. The fact that a number of subscribing countries have not defined the crime as such does not mean that it does not exist in international law, as previously mentioned.  However, article 5 of the Statute of Rome of July 17, 1998 states that the court only has jurisdiction when the crime is defined and the conditions of the concerned jurisdiction are established.  All this in compliance with the terms of the UN Treaty. 


According to article 121 of said Statute, amendments can only be introduced after a period of 7 years starting from the effective date of the Statute, that is the first day of the month following the 60th day after the 60th filing for ratification, agreement or approval from the UN General Secretary.  Consequently, it seems that we still have a few ‘meagre’ years ahead.  Nevertheless, the clock is ticking.  Besides, what are 7 years in terms of international law?

Regardless of possible competence problems with respect to the US, who has thought it appropriate to protect itself against international organizations and a Member State (the Netherlands) with particularly aggressive laws, we must hope that the new legal international institutions will abide by the rule and one day bring those responsible for this war before the World Court.


If not, we can only ascertain that we have not evolved since the early times of civilization and therefore should still be considered ‘Barbarians’.


In closing, I wish to add that I am amazed to see how little attention is paid to civil claims from victims in international criminal law.  In international private law there cannot be much discussion about the existence of an illegitimate act. Contrary to international criminal law, there is now no restriction about filing a civil claim against a responsible party.

Consequently, it should be possible for the many victims of this war to file civil claims from now on against the British and American governments and to claim compensation.  It is essential that this would happen without delay (justice delayed is justice denied).

Obviously these claims will amount to billions of dollars. 


Aside from the obvious victims’ right to compensation, we must wonder whether this is not the best warning for the future.  Indeed, the war instincts of the parties involved are certainly not dead yet. 


Jean Flamme ( the author is an attorney, member of International Criminal Bar and member of the board of the Belgian organization “attorneys for the world”)

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