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France and the ICC

Can Hollande Block the Bombing of Syria?

by JOHN V. WHITBECK

Paris.

Now that Prime Minister David Cameron has sought parliamentary approval for “military action” against Syria and President Barack Obama has announced his intention to seek congressional approval, can President François Hollande, as a political if not a strictly constitutional matter, afford not to do likewise?

A parliamentary session devoted to Syria is already scheduled for September 4, although no formal vote had been planned.

Hollande’s Socialist Party has a comfortable majority in the National Assembly and a razor-thin majority in the Senate. Party discipline in France tends to be more rigid and dependable than in the U.S. and the U.K., but the most recent poll showed 64% of the French people opposed to French involvement in any “military action” against Syria.

It would therefore be both highly interesting and encouraging for the future of democracy in France if Hollande were to permit a free and open debate and vote on this important issue.

However, there is another important issue which Hollande should keep in mind or factor into his thinking if no one has yet alerted to it.

When the Rome Statute establishing the International Criminal Court was being negotiated, certain Western states insisted on a seven-year moratorium before the “crime of aggression” was added to the crimes over which the ICC would have jurisdiction if they were committed either by a State Party of the ICC or on the territory a State Party. This effectively gave habitual and potential aggressors a window of opportunity to continue committing acts of aggression, which was very fortunate for former British prime minister Tony Blair, whose country is a State Party but who therefore enjoys immunity and impunity (at least insofar as ICC jurisdiction is concerned) with respect to his role in the crime of aggression against Iraq in 2003.

However, that window of opportunity was closed on June 11, 2010, when the crime of aggression was inserted into the Rome Statute as one of the crimes over which the ICC now has jurisdiction.

While neither Syria nor the United States is among the 122 States Parties of the ICC (so that only a referral by the UN Security Council can give the ICC jurisdiction over their citizens or over crimes committed on their territory), France is a State Party of the ICC.

Article 8bis (1) of the Rome Statute, as added in 2010, reads: “For the purposes of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Included in the subsequent listing of acts constituting “aggression” is, at Article 8bis (2)(b): “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.”

In the absence of a UN Security Council resolution authorizing “military action” against Syria, these provisions fit the aggression being planned by Presidents Obama and Hollande “like a glove”. Even the most imaginative defense lawyer would struggle to imagine a defense.

The ICC is understandably uncomfortable with the awkward fact that, in over a decade of existence, it has indicted only Africans. If for no other reason than the institutional imperative of the court’s own credibility, there is a compelling need to indict some non-African as soon as the court’s restricted jurisdiction and the gravity and exemplarity of a crime permit.

Nothing could enhance the credibility of the court more than the indictment of the head of state or government of one of the major Western powers.

At the same time, nothing else could so constructively enhance the concept and stature of international law, the belief that international law is not simply (as it has tended to be) a stick with which the rich and powerful beat the poor and weak and the idea that even the rich and powerful do not enjoy immunity and impunity before the rules of international law.

Indeed, nothing else could so effectively enhance the chances for a more peaceful world.

For any number of good reasons, it is to be fervently hoped that, in the end, François Hollande will not choose to participate in the “planning, preparation, initiation or execution” of the crime of aggression against Syria. However, should he do so, his transfer to The Hague could be the only good result of this folly.

John V. Whitbeck is a Paris-based international lawyer.