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- [00:02]
Gary Simpson
Welcome to the LSE events podcast by.
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LSE Events Host
The London School of Economics and Political Science.
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Gary Simpson
Get ready to hear from some of the most influential international figures in the social sciences.
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Professor Klaus Kress
Welcome to the LSE for tonight's event. It's great to see so many people here. For this lecture come conversation entitled the Crime of War. From Nuremberg to Ukraine. I want to just go through a couple of little managerial issues first before we start. I always like this bit. I have to tell you where the fire exits are. They're at the back of the room and if there is a fire, which there won't be, then you ought to gather on the east side of Lincoln's Inn Fields, in other words, facing Lincoln's Inn Fields from the lse. This has been filmed live streamed and the livestream will be available, we hope in a podcast afterwards. We can't absolutely guarantee it in case there are some technical glitches, but we very much hope it will be podcast. Also thanks to the events team up the back there, the LSE's main events team and the law school events team led by Alexandra and Beth up the top there. Thank you for all your help with this. So we meet around the anniversary of the Nuremberg war crimes trials. In fact, there is an anniversary event in Nuremberg this coming weekend, a three day seminar and in the midst of terrible circumstances around the world, in the Democratic Republic of Congo, in Gaza, in the Sudan and Ukraine. And we want to discuss one aspect of this or one legal aspect of this, namely the effort to prevent, through criminalization, war itself. So our topic tonight is a particular crime, the crime of war making, otherwise known as the crime of aggression, or as it was termed at Nuremberg, crimes against peace. And this is a project that began in the interwar period, reached a kind of high point at Nuremberg, and has been the subject of a surprisingly large amount of controversy since then. Since the Nuremberg war crimes trials, we want to touch on those trials. We want to touch on the ensuing controversy and the definition of aggression that was reached in 2010 in Kampala. And who better to talk us through this than Professor Klaus Kress? Klaus holds the chair for German and International Criminal Law and he is the director of the Institute of International Peace and Security Law at the University of Cologne. He worked for the German Federal Ministry on matters of criminal law and international law. He's published, it says here, 200 publications. Can that be right, Klaus? It seems like too many somehow, 200 publications on the law, the use of force, the law of armed conflict and international criminal law. And he was on Germany's Delegation at the conference to establish permanent International criminal court in 1998. In 2019, he was appointed judge ad hoc at the International Court of Justice in the case involving the Gambia and Myanmar. And he is serving currently as a special advisor to the Prosecutor of the ICC on the crime of aggression. And on that matter, everything he says tonight will be said in his private capacity and does not represent the views of the Office of the Prosecutor. So before I call Klaus up, just the structure of the event. We're going to begin with a 30 minute assessment of the field to be delivered by Professor Kress. He and I will then engage in an oh so spontaneous and relaxed conversation with each other about those themes. And then there'll be 30 minutes at the end for Q and A, part of which will involve you and part of which will involve the online audience who we'll hear from through our moderator Bryn in the front row. So please give an LSE welcome to House.
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Gary Simpson
Many thanks, dear Gary, for this extremely kind introduction. It's a great pleasure to be here with you in London for at least three reasons. It's great to be back at LSE and to be able to speak at such a great place of study. It's great to speak on the crime of aggression at the invitation of one grandmaster on the subject, Professor Gary Simpson, who has inspired me, though we are not in agreement in all respects, at least before today's conversation through his writings and not last, it's great to speak about the crime of aggression. I'm doing it for the first time in London. Because London is so central, occupies such a central place in the long historic journey on the crime of aggression, it has been occupying a very important place. I will come back to the London agreement in a moment and I will not forget to mention that also with respect to the most recent developments on which I wish to focus my initial presentation, London has played a pivotal role. Gary has set out how this evening has been devised three components and when I thought about, in light of those three components, how to make best use of this initial 30 minutes or so, I thought I would try to focus on give you a brief and hopefully a very current and as accurate as possible account of three or so quite important and in part quite dramatic years. On recent developments on our subject matter, of course we will go back to the history repeatedly, but the focus will be on those recent developments. The emphasis in these first 30 minutes will thus be more on hopefully accurate information rather than already critical analysis. But don't worry, from the basis of accurate information we will Then certainly in our conversation and through your questions, engaged in a lively debate. Now let me begin this account on recent developments in London with an article which I would at least suspect has been written in London, because the author of this essay is London based. You know him all. Philip Sands. An essay that was published on 28 February 2022 in the Financial Times. And at the core of this essay was an appeal, so to speak, an appeal by a renowned international lawyer to the world. And I cite to this appeal, why not create? Phillip Sens asked a dedicated international Criminal Tribunal to investigate Putin and his accolades for the crime of aggression. And then to make his argument rich and elegant, he immediately referred, writing this essay, probably in London, to London's history, to the London Agreement of 1945, and recalled the important role the Soviet Union had played at the time, of course politically speaking through Stalin. But Stalin had an important legal advisor, so get Jewish jurist Aaron Trinine. And Aaron Trinine's role with specific respect to the crime of aggression was crucial. Gary already mentioned that this crime was at the time of the founding precedent in Nuremberg called Crimes Against Peace. This is the name given in Article 6A of the London Agreement of 19. And the person who coined that term and persuaded the victorious powers to include it in the London agreement was Arvan Trien, a Soviet jurist. Sands concluded after this historic reference and I cite again, let Putin reap what he has sold, including the legacy of of Nuremberg. The immediate background of Sen's appeal was essentially twofold. First of all, 24February of 2022, an unlawful use of force by the Russian Federation against Ukraine had been escalated to a full fledged war of aggression. And this meant that at least by 24th February 2022 there could no longer be a doubt, and this doubt continues to exist until this moment, that President Putin is under suspicion to commit the crime of aggression. The second aspect that forms essential background for Philip Sen's proposal was a statement of 25th February 2022 issued by the Prosecutor of the ICC, Karim Khan, in which he stated so just one day after 24th February, that his hands were tied with respect specifically to the crime of aggression. And the legal background of this statement is, as many of you will know in greater detail, that the ICC's scope of action with respect to to the crime of aggression is curtailed by particularly stringent conditions, conditions far more stringent than those applying to the other three crimes under international law in the ICC statute, which resulted in the fact that the arrest warrant that was subsequently issued by the ICC against President Putin, refers to a very important war crime suspicion, the deportation of children from occupied territories in Ukraine to Russia, but not to what not only Ukraine considers, so to speak, the original sin underlying all war crimes that have ensued. The decision to launch this war of aggression in the first place and this peculiar situation, the icc, basically competent and in a position to exercise jurisdiction, but only about war crimes, crimes against humanity and genocide, and not about the crime of aggression, is characteristic for the peculiar place that the crime of aggression occupied in the international legal architecture at this moment in time in February 2022, the place of the crime of aggression, despite the Nuremberg and I should add, Tokyo precedent remained fragile. Or in the elegant words of my colleague Frederic Meigret, I cite aggression belongs to, but is hanging by, a threat in the firmament of international offenses. End of citation. Now, why after Nuremberg and Tokyo, such a long period of what one might call marginalization of the crime of aggression occurred? We should, and I hope we will discuss later in our conversation through your questions, I would now rather focus on the fact that the picture with regard to this peculiarly fragile status or this marginalization of the crime of aggression has changed in the course of the last three years or so. And we can discuss, and we will discuss to what extent in effect, one can say as a huge compliment to Philip Sands, his essay by which I began this presentation has proved remarkably consequential, not immediately at the level of governmental diplomacy, but over time through the combined and extremely remarkable work of Ukraine's diplomacy. Ukraine's Foreign minister at the time took up Philipp Sen's proposal. Within days this Foreign minister, by the way, as a postdoctoral student, had written a master thesis about again London, the St James Declaration of 1942, an important step, historic step, to the Nuremberg trial. So he was already, as one might think, sensitized for the issue of individual criminal accountability. But after a series of declarations by, in one form or the other, world public opinion, and I would argue it is a, in an interesting phenomenon by itself, what remarkable role public opinion, non governmental public opinion has been playing over months. Eventually the debate spilled over to the governmental level and after long months of hesitation, political hesitation also the three, of course, I leave aside the Soviet Union here, the three London powers, France, UK and the US in this order, joined the debate and took somehow I will get a bit more specific in a moment, took Philip Sen's proposal up. As I said, the last Nuremberg power joining was the United States under the Biden administration. Obviously the ambassador in charge, Beth Van Schaak made an important address in March 2020 23, which signaled that the United States had come on board, where she recalled, United States, I cite, leading role in prosecuting the crime of aggression at Nuremberg, end of quote. And where she recognized, I quote, a critical moment in history, end of quote. And she confirmed that again, quotation. There are compelling reasons for why the crime of aggression must be prosecuted, end of quote. Now we are in October 2025, about two years later, and as we speak, the establishment of what Philip Sens has called a dedicated International Criminal Tribunal for the crime of aggression against Ukraine has become highly probable. Why is this so? Because all the legal texts necessary for the establishment of this tribunal have been negotiated. First of all, a bilateral agreement between Ukraine and the Council of Europe, a bilateral agreement that contains the fully worked out statute for this special tribunal. This agreement has been signed and already ratified by Ukraine, and then remains a very important third text, a category that perhaps not all of you know, which is peculiar to the Council of Europe, the so called enlarged partial agreement. I will not go into the legal details of this type of legal instrument, which is a little bit misunderstood, mysterious, but essentially meant to govern the administration of this Tribunal. And this needs to get in place in order to make the Tribunal actually operative. At this moment in time, governments in Europe, it is likely that not all members of the Council of Europe will join. This is, by the way, the reason why it is a partial agreement. Those governments interested are in a process of examining the details of the budgetary implications, because they need to be in place before the actual green light to the establishment is given and then remains a final decision to be made on the host state. You will, if you have followed, probably know or otherwise assume that the Netherlands, the Hague, is an obvious candidate. But here again, the ultimate political decision has not yet been made. You know that the political situation in the Netherlands is not that uncomplicated at this moment in time. This may explain why the Dutch parliament has recently adopted a resolution encouraging its government to take action on these. Now, all this together certainly constitutes a remarkable development, a remarkable development, essentially for two reasons. First, this high probability of the establishment of the Tribunal means that there is now a realistic possibility that for the first time after Nuremberg and Tokyo, there will be, let me call it this way, non domestic proceedings for the crime of aggression. This is by itself, I believe, significant, but was what is significant, secondly is that this agreement on those texts I mentioned has been achieved despite profound, and I emphasize profound political divergences with regard to the preferences of the supporters of this Tribunal, I will not be able to go into, in the limited time, into all the details, but just to give you the key idea, two basic models were in opposition from the start. Ukraine and many especially middle sized and smaller states supporting Ukraine, favored what Ukraine's President called a full fledged international tribunal. As obviously the Security Council was not in a position politically to lend its hand to the establishment, as in the case of the ICTY and the ictr. The idea developed and defended by many was to conclude an agreement between Ukraine and the United Kingdom nations, concluded on behalf of the United nations by the Secretary General at the recommendation of the General Assembly. This would have meant the most far reaching universal orientation of this tribunal possible. Under the political circumstances. It is probably fair to say that a majority of the participants in this process favored this solution, and most importantly Ukraine itself. However, a very powerful minority opposed. And this minority was the G7 group, which, monolithic as a block, took the position from the outset that this Tribunal should not be international, but anchored in Ukraine's national legal system. But then complemented by a number of, at the outset of the conversation, unspecified international elements one could speculate about international judges, prosecutors, and so far this opposition was so fundamental at the beginning, and compromise seemed so difficult to achieve in brackets for Ukraine, it was, constitutionally speaking, not possible to go down the avenue. The G7 called Ukraine called upon Ukraine to go that one in the year 2023. As a close observer of these conversations, was tempted to adopt a rather pessimistic position. It seemed as if these conversations had resulted resulted into a stalemate, and the conversation only regained momentum. That was probably the decisive moment in the cause of those negotiations in April 2024, when those two conflicting or opposing groups finally agreed about a model that you might call essentially a Rule Regional 1 in connection with the Council of Europe. And I have already mentioned the fact that the key document signed and ratified is an agreement between Ukraine and the Council of Europe. And what is interesting, that in the course of another 3/4 quarters of a year, something resulted from the last phase of these negotiations which can be considered, I believe, as a genuine compromise between these two camps. And I will try to explain you in a nutshell why the G7, with their insistence on anchoring this Tribunal in Ukraine system, will certainly rely on two crucial elements which reflect their preference. First, the founding texts make it abundantly clear that the jurisdiction of this Tribunal is based on Ukraine's territorial jurisdiction, which this state, by virtue of of this agreement, concluded with the Council of Europe delegates to the new Special Tribunal. And second, proceedings before this Special Tribunal will have to go through a national trigger. It is not the international prosecutor of this future tribunal who will be in a position to take action proprio motu. But this prosecutor will be in a position to act only once. The General Prosecutor of Ukraine will have referred to him, I quote, criminal proceedings, information or evidence related to a crime within the jurisdiction of the Special Tribunal. And the third point, and this third point was probably the most controversial, controversial among all, certainly from the political perspective. The personal immunities of the Russian troikar members. For those of you who have only begun recently to study international law, President of the State, Prime Minister and Foreign Minister while still in office, personal immunity of those three is basically maintained. The solution adopted in the end is quite clever. One might say it's not a blanket amnesty. Investigations can take place. They can even go up to the point of the issuance of an indictment. But then, if the indictment is directed against President Putin and President Putin at that moment in time is still in office, the proceedings will have to be suspended before the next procedural step, which would be the confirmation of this indictment by the judge of the pre trial chamber of this tribunal could take place. This means that with respect to personal immunities, and that was probably the point that was most important to the G7 with respect to personal immunities, the legal regime before the Special Tribunal for the crime of aggression against Ukraine deviates from the jurisprudence of the icc. Since Al Bashir, which as you know, does not recognize even personal immunities before the International criminal court. The G7 were adamant not to have this jurisprudence replicated within the legal framework of the Special Tribunal. A matter if you wish for discussion later. But on the other hand, there are strong international elements, far stronger than the G7 would have signaled to be willing to allow at the outset. The Tribunal is based on an international treaty and will have international personality. So in formal terms, there can be little doubt that it is an international and not a Ukrainian tribunal. And perhaps most importantly, apart from the international personnel, prosecutors and judges against strong, let me say, hesitation from within the G7. The definition of the crime of aggression to be applied by this tribunal will not be Ukraine definition, but it will be the international consensus definition included in Article 8bis of the ICC Statute adopted in 2010 at the Kampala Conference. After years of international negotiation, now, all this taken together certainly means that the institutional design of this tribunal falls short of Ukraine's and other aspirations. Why? Because it is at this moment in time, certainly Not a tribunal, which one? A term that I like to use in that respect, which one could consider as being of credible universal orientation. It is essentially a regional international tribunal. But on the other hand, now speaking more from a perspective of political dynamics, given the fact that the G7 were adamant when they started those negotiations, it is impressive to see to what to what extent a determined group of smaller and medium sized states have in the end not managed to get their preference accepted, but to get a genuine compromise agreed. When you compare this with the actual power distribution in this negotiation, this is quite impressive. And I would like to make a special note on the role of Middle and Eastern European states in this process and perhaps most importantly Baltic states, which have negotiated with almost a passionate conviction that the solution advocated by the G7 would be insufficient to meet the seriousness of the challenge. And of course their particular historical legacy. Also their particular view on the Nuremberg trial and the absence of any proceedings there against the Soviet leaders played an important role. Now a lingering question remained and remains, and this is a question not so much asked by those forming the so called core group negotiating this special tribunal, but a question asked essentially by non Western states, African states, Latin American states, states. And this question goes, how credible is this entire exercise? Is it to be a repetition, a mere repetition of an ad hoc initiative almost designed to remain an isolated incidence of the prosecution of the crime of aggression? Or is this the beginning of more? And those who asked this lingering question and continue to ask it, they have reason to be suspicious. Why? Because those constraints, those jurisdictional constraints that currently tie the hands of the ICC prosecutor, which I mentioned at the beginning of my presentation, they are due essentially due to the insistence of a minority of powerful Western states. This was so in 2010 when the essential compromise package on the crime of aggression was adopted at the first review conference of the IC. And it was perhaps even more so true in 2017 when on 14 and 15 December, the last round of heated negotiations took place before the eventual decision was made to activate the courts the ICC's jurisdiction over the crime of aggression. When, and I remember this vividly at around around midnight at UN headquarters, France and the United Kingdom went so far to fight about the placement of a single paragraph in order to make sure that the ICC's scope of action remained so heavily constrained as they wished it to be. Of course, a position adopted by those two Nuremberg powers and the non state Nuremberg power, United States was always present invisibly in the background, is somewhat difficult to reconcile with the famous Nuremberg promise voiced by Nobody less than the chief US Prosecutor, Robert Jackson, who said, I quote, the ultimate step in avoiding periodic wars which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this is first applied against German aggressors, the law includes, and if it is to serve a useful purpose, it must condemn aggression by other nations, including those who sit here now in judgment, end of quote. So basically, the question asked by many with respect to this process that I have just try to summarize for you, does this mean that those powers and other Western states forming this minority are now prepared to live up to their Nuremberg promise? And to live up to this promise under the current legal circumstances would mean to remedy the problem that has given rise to Philip Sens essay at its legal roots, and these legal roots are in the ICC statute that contains these debilitating jurisdictional constraints. So the question was, what about a reform of the ICC statute itself that would make sure that that institution, the first permanent international criminal court in history, in existence since 1998, and obviously the natural place for the prosecution of crimes of aggression, would be in a position in the future to do what the Special Tribunal for the prime of aggression against Ukraine, Ukraine is meant to do now. A number of those states, and to be fair, a significant number of those states negotiating the Special Tribunal understood this point and this call, and they formed what they called a group of friends to reform the ICC statute to do just this invoice, what they called a second diplomatic track alongside the first one on the Special Tribunal. Yes, this group initially was by large majority European, but remarkably, this group, over time, a group which began its work also, I think, in the course of 2023, reached out to the African and the Latin American region. And in the course of longer diplomatic exchanges, African and Latin American states, at least a significant number among them, re engaged in this process. I say re re engaged because those states had been in favor not only of including the crime of aggression in the ICC statute, but also on the same footing than the other crimes from the very beginning of the negotiations in the late 1990s. They had abandoned the process essentially out of disappointment. Appointment about the compromises I have mentioned in Kampala and later and I to give you a flavor quote from South Africa's delegates, Andre Stemmit, right after the Kampala conference. And I make this quote because he certainly did articulate a sense of disappointment that went beyond South Africa. The major weakness is, of course, that non state parties will be able to commit aggression with A sense of impunity and this reflection of realpolitik may result in a very slow process of ratification and acceptance. Here, early after the Kampala conference, he predicted what then actually happened. Very little interest in these regions in the further development of the international legal architecture against aggression. But this changed over the past two years, another very significant development. And eventually a text was proposed by Costa Rica, Germany, Sierra Leone, Slovenia and Vanuatu for adoption at the special session or a special session of the assembly of State Parties, which took place on 7 to 9July this year in New York. And this tax proposal was rather short and crisp. It had one very targeted, focused legal ambition to do away with these specific jurisdictional restraints and make the general jurisdictional regime applying to war crimes, crimes against humanity and genocide from now on applicable to the crime of aggression as well. This proposal in New York met with an impressive cross regional majority among the states parties of the ICC, which were present in New York. An overwhelming majority of delegations from Europe, a large majority of the delegations from Africa. Very significant because the African group is the largest group of state parties to the icc. And also a majority of delegations from Latin America supported this proposal, which was referred to for reasons of convenience as the harmonization proposal. And very significantly as well, at least for those who recall, what an important role the NGO coalition has been playing since 1998 in negotiations on international criminal justice. Also the Coalition for the International Criminal Court, this umbrella NGO coalition, for the first time since the beginning of those negotiations, spoke with admirable clarity and dedication in support of this new, stronger, harmonized position of the crime of aggression in the ICC Statute. Yet this was only a majority. A minority opposed. The minority originally composed by five states, Canada, France, Japan, New Zealand and the United Kingdom. And please note, except for New Zealand, all the other opponents were part of the core group of states who support the establishment of the Special Tribunal for the Crime of Aggression against Ukraine. Now, what's the motivation, or what was the motivation of the those states? Again, time does not allow to give you a comprehensive speculation. And when I say speculation, I choose this term deliberately because those opposing states did not really spell out their objections in great detail. They rather alluded to them. They alluded to what they called unresolved technical legal issues. I will not go into detail here. They referred to the question of the entry into force and the second sentence of Article 121, paragraph 5. I'm happy to take questions, but I would not assume that this should be in the center of our interest here. Then they referred to the limited number of ratifications of the Kampala amendments, up to that point around 50 ratifications. So they wondered whether this is sufficient to move one step forward. And then they pointed out that the ICC was already in a politically delicate, difficult situations. Of course, alluding to the sanctions by that moment in time imposed on ICC personnel by the US Administration, what I believe might have been the most important consideration was perhaps the one most vaguely alluded to. I would call it indications of a continuing unhappiness with the definition of the prime of aggression in Article 8bis, but a definition adopted by consensus. So including all those states concerned a couple of years ago, now only Argentina, Australia and Uganda unambiguously aligned with those opponents. So even all in all, they remained in numbers, in terms of numbers, a fairly limited group. But they received at New York, in New York itself, powerful backing from the United States. The United States appeared on the scene as a non party state, as an observer state, and the representative of the United States, if I may say from my observer's perspective, there, without much of a recognizable effort to observe forms of diplomatic courtesy, uttered the threat to impose further sanctions on the ICC should this reform proposal be adopted. It finally, to give you the complete picture, the position of two states was important. Brazil and South Korea, two important representatives of once the in one respect the Latin American and then the Asian region. Both did not really take a position on the substance, but emphasized they would not wish to move forward without consensus. And of course, this played powerfully into the hands of the opposing minority. At this moment in time, the supporters of the proposal submitted a compromise proposal. So they made moved on, changed their original proposal and added two elements in the hope to accommodate the concern by the minority. The minority had repeatedly asked for more time to consider the idea. Therefore, the supporters suggested to defer the entry into force until the decision deposit of the 30th Ratification Instrument of ratification. And they added a possibility, signaling to the minority, we are not willing to insist or to insist on our proposal if we do not act on the basis of a majority. They added the possibility to stop the entire process should there be a vote of a 2/3 majority to the country. But also those two elements which significantly changed the original proposition did not have any decisive importance on the position of the opponents. They signaled they move at this moment in time. The majority did not consider it wise to push for a vote which would legally have been possible if they had been able to mobilize a 2/3 majority. But that was considered within the group of supporters as not being a wise cause of action. But that meant that for a moment in time, that was one day before the end of this special session, there was a real prospect before negotiators of a complete failure of this diplomatic exercise. Fortunately, at this moment in time also the. The opponents seem to have come to the conclusion that such an outcome, complete failure in this sense, would be unsatisfactory. And perhaps this is again a speculation. Perhaps by that moment in time, after very intense exchanges, the arguments by so many fellow state parties on the need to overcome a double standard in the ICC statute had made a certain impact also on the minority. A final effort was made to avoid this complete failure. And this, this effort, I would argue, was not made in vain. For the assembly of State Parties in the end adopted a resolution by consensus, which in essence means that this reform proposal that was tabled remains on the agenda of the assembly of State Parties, coupled with a specific diplomatic roadmap for the future negotiations and with a view to reconvening in the form of a special session in 2029 to take a decision. And perhaps the most important element, I would at least argue it is the most important important element, and it was agreed upon. To my personal surprise, the final compromise goes on to state in agreement. So the minority agreeing with this idea on a commitment of the assembly of State Parties to the aim, I quote, of strengthening the Court's jurisdiction over the crime of aggression. So the minority that had adamantly opposed to this idea at the beginning has ultimately agreed to the need of strengthening the jurisdiction as it stands. So where do we stand? After these recent developments, I would argue that the long term marginalization of the crime of aggression is over, that a truly remarkable step has been made toward the establishment of a special tribunal for the crime of aggression against Ukraine. But at the same time that the Nuremberg promise of a general application of the foundational precedent on crimes against peace will remain unfulfilled, at least for the next four years to come, so that the long journey regarding the crime of aggression will carry on. It was Palestine's ambassador may yet Bahima who in my personal view summarized the state of affairs with particular eloquence at the end of the New York special session, and in brackets, Palestine was one of the most dedicated delegations in support of the harmonization proposal. And I would like to end this presentation with this quote. It would appear so the Ambassador, that when we talk about the crime aggression, we are looking at a hurdles race where instead of running we continue to walk and where obstacles continue mounting and the Victims of the crime of aggression are asked to wait. In the meantime, the resolution before us. That's the one that I have just summarized for you. The resolution before us does not reflect the urgent need for action or the historical responsibility that falls upon us. However, we have to highlight the constructive approach that prevailed over our discussions. And this is a merit, we recognize, to all those who were involved in these discussions, whatever their initial positions were. We also have to highlight the important, important signal that we are all sending by being united at this critical and important juncture. We also highlight our joint commitment, reflected in the draft resolution, to strengthen the jurisdiction of the court over the crime of aggression and our ability to adopt a way to move forward together on this important matter. We have an obligation of results when it comes to the issue of the crime of aggression. End of quote and end of these initial remarks.
- [56:40]
LSE Podcast Promoter
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- [57:10]
Professor Klaus Kress
Okay, so let's hear some questions from the audience. We've got about 25 minutes left, so if we take bundles of three questions, I might slip in the odd question as we go along, but our microphones here and here. So let's see a sea of hands going up. Yeah, Lucy, take about three questions.
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LSE Podcast Promoter
I was wondering about kind of your thoughts on the crime of aggression, like, working theoretically, in terms of. We discussed what professor did. If we use just war to make war a crime, do we then get. Sorry. If we use just war to make war crime, use just war arguments, do we then get stuck with just war arguments that say, well, this particular war was important, or we needed this one from a moral standpoint to kind of like humanitarian intervention arguments. Do we kind of get stuck in that cycle or is there a way out of it? Kind of theoretically. Thank you.
- [58:29]
Gary Simpson
Good question.
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Professor Klaus Kress
Yeah. Others. Shall we. Shall we have a go at that one?
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Gary Simpson
There is one.
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Professor Klaus Kress
Okay. Up the back there.
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Gary Simpson
You mentioned United States sanctions on ICC officials. I think I also read that certain ICC officials were blocked from their Microsoft accounts in coordination with U.S. sanctions. Do you think any thought would be given to considering a legal concept of obstruction of justice with regard to the crimes of aggression?
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Professor Klaus Kress
Good. Yeah. So an obstruction of justice question aimed at the US Sanctioning of ICC officials and a question about the relationship between just war thinking and international criminal law. I can certainly have a go at this.
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Gary Simpson
You spoke of three questions.
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Professor Klaus Kress
I didn't get a third question here. Question down the front here.
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LSE Events Host
Yeah, thank you professor, for your lecture. And I'd like to ask a question about the possibility of the final implementation of the Special Tribunal. So to sign Judge Xu Hanqi in her declaration in the Ukraine vs Russia case, she questioned about, one may wonder how the those measures could be meaningfully effectively implemented by only one party of the conflict. So how likely are we going to see the Russian defendant to be prosecuted in these tribunals? As long as these high ranking officials are unlikely to travel to other states in the further years to come, and it is unlikely that they may be put under the enforcement measures of the tribunal. So I'd like to question about how likely it is going to be implemented. Thank you.
- [60:24]
Gary Simpson
Yeah.
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Professor Klaus Kress
Okay, so there are three questions.
- [60:32]
Gary Simpson
So let me go chronologically and begin with your question, which I believe touches on the one issue I had already identified as being worthy for further reflection. Why this long period of marginalization, specifically of the, of the crime of aggression? And I believe the point you mention is one of those reasons. The first is a, I would use a term that Gary Simpson has coined is a general sovereignty reluctance of a number of states to subject their military action to international scrutiny and even more so international criminal scrutiny. The second reason has to do with a vocabulary that you have perhaps come across, the vocabulary of atrocity crime, which allegedly does not include the crime of aggression, but only war crimes, crimes against humanity and genocide, allegedly those crimes being more serious than the crime of aggression. And the third consideration is the one you have touched upon, a sentiment that the crime of aggression is, is of a nature particularly difficult to define in ways that are amenable to legal adjudication. And as you have touched only on the third one, I will confine my answer to those. I believe that if we look back to the starting point of the conversation, this conviction that there is perhaps a particular challenge with regard to defining the crime of aggression has an important element of truth in it. Why is this the case? Not so much because we are, we have to rely on just war theory or philosophy here, of course, as well as with respect to the other crimes as well, we have to rely on legal grounds and just war theory philosophy is more, so to speak, an inspirational background. But what is certainly true is that the prohibition of the use of force, which is, if I may say, the primary rule, the conduct rule of international law, which is the major point of normative reference for the crime of aggression, or to put it differently, it is the prohibition of the use of force. That the crime of aggression is meant to prevent it from erosion in cases of serious violations. That this prohibition of the use of force is a matter of significant legal controversy. And here I do not mean legal controversy in the form of a cynical use of arguments of the type we have heard it when Putin made his propaganda speak speech. But I mean serious legal controversy between reasonable international lawyers on a number of fronts. There is a core of the prohibition of the use of force where I would argue there is no and there cannot be any reasonable disagreement about it. This is why we have in the case of Russia's war of aggression, virtual unanimity among international lawyers in their evaluation. But those of you who have studied the law on the prohibition of the use of force know very well that there are areas of the law of self defense, non state actors. Is there room for preventive self defense, controversial areas of consent to the use of force in cases of controversial governments or question about the identity of the government. And then you have referred to the case of humanitarian intervention. There are cases where reasonable international lawyers disagree. And it is more than a reasonable legal disagreement. What makes the situation more difficult is that underlying those legal controversies are deep seated political disagreements. One may, I would argue, legitimately differ whether there should be a right of self defense in case of non state armed attacks and you will have the recent historic incident incidences in case or whether there should be scope for preventive self defense. States up to now simply have not been able to reach legal and political agreement on those issues and therefore one may certainly consider it a legitimate concern of states such as France, uk, the United States. So those opponents that an international criminal Court could adopt a legal interpretation that they for legitimate reasons, whatever you and I think about it, do not share at the present moment in time. However, in the course of those lengthy negotiations on the definition of the crime of aggression that I have mentioned, this problem has not been sidelined or overlooked, but it has been addressed. It has there was exchange about this challenge and the definition that was eventually adopted and which you now find in Article 8bis of the ICC Statute contains one word which may say seem to an unfamiliar observer innocent or little telling, but which encapsulates the entire exchange between states about this very issue of controversial cases. And this is the word manifest, manifest by its character, manifest violation of the United Nations Charter. And it is made clear in the Travaux Preparatoire that this Word manifest, much to the dislike of many states has been included to clearly signal to the judges of the ICC that in applying this definition, this International Criminal Court should stay clear from those controversial areas. Even if individual judges would, for example, if they sit at the ICJ bench, come to the conclusion that a certain use of force is unlawful, if they recognize that there is an arguable, a tenable, a reasonable argument to the contrary, even if they personally do not consider it convincing, they should keep this case outside the realm of international criminal law. So that's the basic approach encapsulated in the definition on. So it's not so much about just war, but about the intricacies of the existing international legal framework. But I see, I am.
- [68:52]
Professor Klaus Kress
Thanks for to come in. So I'm going to ask a kind of omnibus question here. We spent about an hour in my Monday night politics of International Law class speaking about manifestos, interestingly enough. And I wanted to sort of piggyback on Lucy's question. We've been trying to figure out why something counseling went from being the supreme crime containing the accumulated evil of the whole, as the Nuremberg Tribunal put it, to being this issue of controversy. And you've very eloquently set out the controversy and some of the ways we've tried to massage that. But I wonder if it's not the case that we disagree about the crime of the aggression because we disagree about the crime of aggression at some really fundamental level, that somehow we don't quite believe that such a crime should be applied universally so that virtually every conceivable criminalization will take place in highly ideological circumstances. So you've described, you describe the two cases currently going through the international community. One is a special tribunal. So on one hand we're pushing this idea of universal justice, a crime that will apply to all. But on the other hand we have special tribunal as one of the suggestions for dealing with Ukraine and then this slightly ex post facto reform of the icc, as if the architects, I know you and I agree on this, but as if the architects of the ICC somehow didn't realize that a state might invade another state at some point in the way Russia invaded Ukraine and that they were taken by surprise at the jurisdictional gaps in the ICC statute. That doesn't seem credible to me. I think what's happened here instead is that international criminal law are sort of being co opted into some sort of scheme to punish an obvious violator of what are sometimes called, you know, the global rules based order. And that's why we keep struggling to reach this universalist position that I think you understandably aspire to it somehow it feels to me as if it keeps being undermined through these diplomatic initiatives. So that there's bound to be a certain discomfort about the idea of a special special tribunal. If you're trying to promote a global rules based order, it seems strange to design a special tribunal to deal with one person over there who committed this particular invasion in 2022. I wonder, I wonder if that's the problem, that we don't somehow believe in it. And that's sort of combining every single question I was going to ask you that we discussed before, before we did this, but, but yeah. Anyway, that's it.
- [72:06]
Gary Simpson
May I respond?
- [72:08]
Professor Klaus Kress
Well, let's, let's, let's, let's hear. Let's hear. Let's hear. Because I, I got into trouble last year because I did. I didn't allow the people online to ask questions, or rather I didn't allow anyone to answer them. So. So let's hear three online questions and we can sort of weave it all together.
- [72:25]
Audience Member
Thank you. I'm going to do two questions if that's okay. So the first one is, do you think that the characterization of the Special Tribunal as an international or internationalized court has an impact on the question whether it needs to grant personal immunity to the troika if only a limited number of states sign the enlarged partial agreement? Is this an argument against the nature as an international tribunal? Is the first question. The second question is in both the contemplated Council of Europe Tribunal and the icc, would the prohibition on aggression trace any further back than the UN Charter? Could you perhaps point to the Kellogg Bryan Pact or any customary international law?
- [73:15]
Gary Simpson
Let me begin with the first question and perhaps the second one, you could help me to read it again. Yes. I believe that the characterization of the tribunal and its international nature has an impact on the question of personal immunities and its applicability. But with one caveat. With respect to this special Tribunal as it is established now, the question of personal immunities is decided by its very text. Whatever you think the position under customary law, customary international law is, under its statute, the judges of this tribunal will be bound to respect personal immunities as a matter of treaty law in the way I have just described it. But when you go a step back and ask the interesting question, whether the special tribunal precedent recognizing personal immunities is in contradiction with the ICC jurisprudence, then this question matters. And we have heard initial commentaries by colleagues who have argued here. You see the legal regulation on Personal immunities in this special tribunal statute is a contradiction to the jurisdiction or the jurisprudence of the icc. And here I would respond be a little cautious. It is one weakness of the ICC Appeals Chamber's decision in Al Bashir that they have not really qualified or specified what they understand by international proceedings. International tribunal before which personal immunities are, are not applicable. My position is that it is not just each and every international tribunal to which this rule applies, but only, and now I repeat a term that I had used before, an international tribunal with a credible universal orientation. So an international tribunal that through its design can make a credible argument to be a direct representative of the international community as a whole. And if you compare in that respect the structure of the Special Tribunal for the crime of aggression against Ukraine with the icc, there are noteworthy differences. This is an international tribunal tribunal, but one with a clear regional anchor. It is true that non Council of Europe member states may join this enlarged partial agreement. So there might be, and this is much to be desired. There might be non European support in the midterm, but we do not know whether and to what extent this will happen. So in that respect one can understand that the position was taken not to follow the bold ICC jurisprudence with respect to this tribunal. So that would be the, the answer to the first question, the second one.
- [76:55]
Audience Member
The second one was just about the history of the crime of aggression. So the prohibition on a against aggression, tracing it back perhaps to customary international law or the Kellogg Grant act beyond the UN Charter.
- [77:12]
Gary Simpson
Yeah. So in an. In a nutshell, I do not believe that we can find a crime of aggression as an international crime as a full fledged crime under customer interest international law. Already before Nuremberg, what we have seen in the interwar period is what in my view can best be described as the beginning of a crystallizing process. References to the notion of a crime under international law, by the way, not in the Brion Kellogg Pact itself. There is nothing about infection international criminality. And the defense in Nuremberg relied on that absence of references to criminality heavily. But there were references, of course. In Paris after the First World War, the actual debate about criminalizing aggression began. Ironically, it is a historic irony that it was France and the UK that pushed towards internationalizing the prosecution of aggression after the First World War. It was basically the United States that prevented that from happening. But the culmination of this crystallizing process occurred, in my view, only at Nuremberg.
- [78:43]
Professor Klaus Kress
Well, I was going to say something and then I'm going to let you have the final word. So what we have is an enormous amount of lawyerly and bureaucratic and reformist energy that's been present since I think the late 80s at least the effort to try to criminalize aggression and come up with definition. I predicted that there would be no definition and yet it happened in 2010. So, you know, mea culpa on that on one hand. And then on the other hand we've got Fred McGray's comment that it seems to be constantly hanging by a thread and I wanted to ask you how that combination works for you in the field or how we should approach that combination. The sense of aggression's precariously business as a political legal project and the amount of institutional energy surrounding it particularly, and I know this is a rather big question, particularly in light of the forces arrayed against questions of historical responsibility and the allocation of historical responsibility. I'm calling that the Vance position on international diplomacy, the position that says we're not interested in the historical allocation of responsibility anymore. That's very 20th century. What we're interested in is reaching an agreement. What we are interested in is the art of the deal, not the art of historical responsibility. So how are we to situate ourselves as international criminal lawyers in that rather sort of infertile environment?
- [80:30]
Gary Simpson
Let me say, just so that it doesn't get completely forgotten, two words on the two other questions that are still unanswered. On the sanctions question, which is not, and I think you who ask this question perfectly know this is not directly related to the crime of aggression. Yes, I would agree with you that the sanctions imposed on ICC personnel raise a serious question of criminality under the so called annex crimes or Article 70 crimes. Obstruction of justice. Yes, this is a very relevant question and perhaps with respect to the sanction argument in the course of the negotiations in York which I mentioned, this possibility of further sanctions on the ICC was more or less directly made by the opponents. I have not found this very persuasive at the time when it was made because it would have meant to signal clearly to the those wishing to impose sanctions that basically we refrain from doing things that we consider to be right because of a sanctions threat. And it was also my view that this sanction threat was hanging over the ICC quite irrespective of whether further progress was made on the coast crime of aggression. And this dire prediction was then very soon confirmed because even though the opposing minority prevented progress on the crime of aggression as the United States hoped, further sanctions were imposed because of the Gaza situation and other matters. So I don't think that member states of the ICC are well advised to direct or to be guided in their action by impending threats by the United States or others. Your question on enforcement, sir? It is fairly clear that as long as Putin and the Putin regime is in power, we will not see Russian defendants before, say, a Hague Special tribunal, if it will be the Hague. But I do not believe in this case, as in other cases, that this should prevent the international community or in this case those supporting international adjudication to do what they can do up to to this point. This is no convincing reason not to commence with investigations. This is not a convincing reason to produce an indictment. All those steps are important steps to signal that we are not simply fatalistic with respect to fundamental violations of the international legal order. But we do what we can step by step, and the political situation as we have seen, seen it in the past, might change and then we do the next step. This is a long term project. Now on your fundamental question, Gary, first of all, I don't think that with respect to the ICC reform under discussion, there was anything even vaguely ex post facto. The idea was to reform the ICC Statute for the future with a clear warning to all. So in accordance with the practice that we have had so far, whenever an amendment took place for the future, signaling that the law will be applied equally. Second, I think, or I hope that nobody misunderstood me to say when I said that overall, I consider consider this process on the Special Tribunal to be a remarkable one. I hope nobody understood me to suggest that this is an ideal way forward. I am not in favor of special tribunals, especially not for the crime of aggression. I'm not in favor of ad hoc mechanisms. I have argued from the beginning that there should be over only one solution and this solution should be reform of the ICC Statute. But when governments or a group of governments took the position that for reasons of speed and in order to adhere to what is certainly not an illegitimate wish of Ukraine to take action speedily, that they would work towards this Special Tribunal. For the My argument was if such a special tribunal is considered as a transitional element, as a transitional element, which somewhat like the ICTY and the ictr, paves the ground for a better structure for the Permanent Court, then I believe it is at least an arguable way forward. And this is why I had hoped so much that all those states that supported the establishment of the Special Tribune, including the United Kingdom, France, Canada, Australia, would then also be ready to apply this idea more generally. And now third, when you speak about the crime of a But I might not do justice. Now, if I summarize this idea, at least if you ask whether this is not perhaps somehow ideological, the crime of aggression or inherently political, and therefore we will never really arrive at a proper law? I always want wonder because this argument is made again and again specifically with respect to the crime of aggression. Are those who ask that question really so certain that there is a fundamental difference in that respect political nature between the crime of aggression and the other crimes? Is it unpolitical? If the ICC proceeds with an arrest warrant against Al Bashir because of genocide and crimes against humanity, is it not in the very nature of all crimes under international law that they take place usually in a highly politicized and political context and that for this reason the enforcement of legal rules faces partition particular challenges? And are those difficulties to which I have alluded in response to the first question that there are interpretational problems, questions of legal certainty, which I readily acknowledge. But is it really true that we do not have to face those problems with respect to the other crimes? We have a war crime in the ICC statute of the launching military attacks that cause disproportionate incidental civilian damages. Everybody among you who has studied the law of international or non international armed conflict knows how awfully difficult, I would argue, more difficult it is to operationalize and to apply with legal certainty this war crime. The crime of aggression has a degree of uncertainty. But I would argue that among once again legal reasonable international lawyers, we will in more than 98% of the cases agree whether a violation of the prohibition of the use of force is manifest or not. I do not disagree that even there of course will be borderline cases. You will never avoid borderline cases in law. But the existence of borderline cases, the existence of gray areas does not prevent us to move forward with respect to other crimes. And it is the question that African Latin American states asked why is it the crime of aggression that we take those concerns so particularly serious? And there is a suspicion. The suspicion of those states is because it is perhaps considered by a number of Western states more likely that those borderline cases uncertainties will come to be applied with regard to their own personal. It seems to be that's the suspension suspicion that the sensitivity with regard to a degree of uncertainty is greater when it comes to their personnel than with respect to genocide and crimes against humanity where usually the conflicts take place in. In other regions. And finally, Mr. Vance Gary, if we. If we take Mr. Vance philosophy of international law as a yards, we do not only have a problem with respect to the prime of aggression, we have a very fundamental problem. I don't think that Mr. Van's philosophy is a challenge which is in any respect peculiar for our subject today, but it runs far deeper. It is a challenge not only against the international criminal law enterprise, but it is a challenge against the core facets of the international legal order that we currently have. But that's for another evening.
- [90:58]
Professor Klaus Kress
Indeed. Well, speaking as an unreasonable international criminal lawyer, I think you come closer than virtually anyone else to turning me into a reasonable international criminal lawyer. Which is why I asked you to come and speak here. And you spoke spoke with such eloquence and power about the crime of aggression, you have almost changed my mind. Clash, I can pay no greater compliment. Can you join me in thanking Professor Kreg?
- [91:34]
Gary Simpson
Thank you for listening.
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