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Trouble for the International Criminal Court
Surprisingly, the global-happy Obama administration is leading the opposition.


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Brett D. Schaefer

How is the International Criminal Court getting along? To answer that question, the Review Conference for the ICC was convened in Kampala, Uganda, on May 31 and is scheduled to last through June 11. It was launched with an ambitious agenda to engage in a stocktaking exercise, assess the Court’s record since 2002, and consider three amendments to the Rome Statute, which established the ICC. The organizers and supportive non-governmental organizations (NGOs) had high hopes that the conference would result in a ringing endorsement of the Court and the adoption of amendments that would greatly enhance its power. Midway through the conference, however, that agenda is taking on water. Most surprising — and gratifying — is that concerns and objections raised by the Obama administration have been central to interrupting the momentum of the conference and, hopefully, stopping the adoption of the proposed amendments.


Opening Comments Set the Stage for Dissension

The review conference kicked off with the kind of fanfare that is traditional at international meetings. The opening comments (termed the “general debate”) began with a series of statements from ICC officials, U.N. secretary-general Ban Ki-moon, and former U.N. secretary-general Kofi Annan. The two days of general debate involved statements from 84 states (67 “states parties” and 17 “observers”) along with numerous international organizations and NGOs, all reiterating “their commitment to the ICC mission of fighting against impunity, bringing justice to victims and deterring future atrocities.”

 

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However, just as momentum seemed to be building toward a smooth adoption of the agenda, the U.S. delegation voiced a discordant note. In his opening statement, U.S. ambassador-at-large for war crimes Stephen Rapp told the assembled countries that

we have repeatedly been reminded that many issues concerning the crime of aggression remain to be resolved, including core questions that the Special Working Group identified when it concluded its work last year. These issues are not of marginal significance, they are elemental: What conditions must be satisfied before the ICC can exercise jurisdiction over the crime of aggression, for example? How will any aggression amendments that might be adopted enter into force?

Ambassador Rapp reiterated that the uncertainties surrounding the crime of aggression are too fundamental to be resolved at the conference, and that the willingness of some member states to have the conference adopt the proposed crime of aggression and let the ICC clarify any uncertainties through future cases was unacceptable, observing that “a fundamental principle of legality is that individuals must know whether conduct crosses the line into that which is forbidden before they act and not learn the answer in the crucible of trial.”

 

He concluded by observing that if the crime of aggression is adopted, the prospects for the ICC to attain universal ratification will be greatly diminished. This not-so-subtle implication that the U.S. would never ratify the Rome Statute if the proposed crime of aggression was adopted cast a pall over the conference.

 

The general debate closed with many NGOs and delegates voicing frustrated and disappointed comments to each other. Although they should not have been surprised — the Obama administration had been making similar statements for months prior to the conference — many delegates and NGOs had held out hope that the Americans would become more conciliatory once they were at the conference itself. They were disabused of that hope by Rapp’s statement, which, aside from a few sentences here and there, could have been made by the Bush administration.

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How Wonderful Is the ICC? Let Me Count the Ways

The next two days were occupied by the stocktaking exercise. This process — assessing the ICC’s impact on victims and affected communities, and on peace and justice, and deciding how the principle of complementarity with domestic jurisdictions was developing, and how to enhance cooperation with the ICC — was staid to a fault. Indeed, it seemed designed to prevent anything like an honest assessment of the work of the ICC from taking place.

 

The panels were made up of ICC officials, U.N. human-rights officials, and NGO proponents of the Court. They issued a series of statements according to which the ICC had no flaw except that it was not sufficiently regarded and revered internationally. The question-and-answer part of the session was dominated by state delegates reading prepared statements of their governments’ dedication to the mission of the ICC and support for efforts to increase its effectiveness.

 

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No mention was made of the very real questions about the impact of the ICC, or of its fundamental problems. The stocktaking ignored the fact that the ICC has yet to complete a trial, and has issued 13 arrest warrants but successfully arrested only four people. Little caution was voiced about how ICC efforts to arrest and try Sudan’s president may have complicated, exacerbated, or prolonged the conflict in Darfur. Despite the glaring reality that it is premature to judge the ICC when it has yet to actually do anything to completion, the consensus was that the ICC has been a resounding success.

In short, the stocktaking exercise was a lost opportunity to really examine the strengths and weaknesses of the Court. In fact, it was so predictable and propagandistic that, following the first session, many NGOs fervently supportive of the ICC elected to attend various side sessions instead. A more telling indictment is hard to imagine.

 

Amendments to the Rome Statute Appear to Be in Jeopardy

The inanity of the stocktaking exercise mercifully ended, and the week concluded on Friday with a consideration of proposed amendments to the Rome Statute that would (1) delete article 124 of the statute, which allows signatories a grace period before its terms apply to them, (2) classify the use of certain additional weapons as war crimes under article 8 of the statute, and (3) adopt a definition of the crime of aggression. The subsequent discussion revealed substantial disagreement among the delegations.

 

Crime of Aggression. The morning session focused on the crime of aggression. The bulk of the session consisted of various ICC parties stating their support for the proposed definition of the crime of aggression and their preferred options for how an investigation should be triggered, which ranged from very restrictive to legal laissez faire. The most restrictive trigger would empower the ICC to investigate an alleged crime of aggression only after the U.N. Security Council determines that one has occurred. The least restrictive trigger would permit the ICC prosecutor to proceed with an investigation on his own authority six months after notifying the Security Council that he believes there is a reasonable basis to investigate.

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The U.S., in a statement by Department of State legal adviser Harold Hongju Koh, launched a broadside of objections to the proposed crime of aggression.

  First, Koh asserted that passing the crime of aggression by anything less than consensus would lead to inevitable challenges of the legitimacy of that crime should the ICC ever seek to prosecute.

  Second, he argued that the elements of the crime were not yet developed, and there would need to be a delay in making the crime operational until they could be developed.

  Third, he noted that there was no consensus on the trigger for the crime.

  Fourth, he noted that even though the member states had agreed on the wording of the definition of the crime of aggression, there was considerable dispute about its meaning.

  Fifth, he argued that the amendment could criminalize the use of military force in humanitarian operations that are intended to prevent crimes against humanity, war crimes, or genocide (the very crimes that are currently under the jurisdiction of the ICC).

  Sixth, he argued that the crime of aggression as proposed does not reflect customary international law.

  Finally, Koh noted that, since the ICC urges states to adopt domestic legislation implementing the Rome Statute, the crime of aggression would “ask the domestic courts of one country to sit in judgment upon the state acts of other countries in a manner highly unlikely to promote peace and security.”

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The U.S. was followed by Russia and China, both of which also made strong objections to the proposed crime of aggression. Their statements echoed parts of Koh’s, but also focused on how the proposed crime of aggression would violate international law by infringing on the U.N. Charter, which grants preeminent authority over aggression to the U.N. Security Council.

The strong criticism by these three powers, and the implicit understanding that they would not join the ICC if the crime of aggression was adopted, weighed strongly on the delegates.

Amending Article 8. The U.S. did not intervene in the afternoon sessions, since its diplomats were evidently more focused on meeting with other delegations to discuss its concerns about the crime of aggression. This oversight could come back to hurt the U.S., because the working group adopted by consensus the amendment to classify the use of additional weapons as war crimes under Article 8 of the Rome Statute. Specifically, the amendment would prohibit “poison or poisoned weapons,” “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices,” and “bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”
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At a May conference hosted by the American Society for International Law, Rosa Brooks, senior adviser to the under secretary of defense for policy, voiced concern that the ICC was not the right forum in which to discuss constraints on conventional weapons, which would be better addressed by the Conference on Certain Conventional Weapons, and that the amendment

just hadn’t been quite thought thorough in terms of what is actually in use and why. . . . Some of the kinds of ammunition at issue are ones that are not only often used by law-enforcement officials but in counterterrorism operations, and often are used precisely in order to avoid unnecessary harm to civilians because they — or, for instance, imagine a hostage situation where you’re trying to make sure that you don’t accidentally kill the hostages, and if you shoot at somebody, you only kill the guy you’re shooting at, or an aircraft situation where you don’t want to pierce the shell of the aircraft and have the whole plane come down. So we have some concerns about whether, with the best of intentions, this amendment ends up being very problematic in all kinds of situations.

There are also concerns about how the ICC could interpret the use of asphyxiating gases and riot-control agents in non-international armed conflicts as well. The failure of the U.S. to voice its concerns at the working-group level could be interpreted as acquiescence and lead the states parties to adopt the amendment this week. This outcome would not be in the interest of the U.S., so the U.S. delegation needs to make its concerns known this week.

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Deleting Article 124. The U.S. also did not intervene in the proposal to delete article 124 of the Rome Statute, which allows a state, upon ratifying or acceding to the treaty, to “declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to [war crimes] when a crime is alleged to have been committed by its nationals or on its territory.” Critics of this article say it is inconsistent with the treaty’s object and purpose: punishing war crimes. It was originally included in the treaty to broaden its appeal to states involved in conflicts at the time. Apparently this argument remains sound, because despite U.S. inaction, a number of states argued against this amendment.

Japan predicted that its efforts to persuade other Asian states to join the ICC would be weakened if article 124 was removed. Others reasoned that it would be unfair to expect new states to join the ICC without all the privileges of those who had joined earlier. Although the African states argued forcefully on behalf of deleting article 124, even the European Union ended up arguing that it should be maintained in the interest of increasing the chances of attaining universal ratification of the Rome Statute.

 

Positive Signs, but Don’t Send for the Champagne Yet

The ICC Review Conference is only halfway over, but there is reason for cautious optimism that the proposed amendments to the Rome Statute can be blocked. The U.S. has repeatedly argued that amendments should be adopted by consensus to maximize their legitimacy. At the end of last week, the assembled states seemed to agree with this view. Since the U.S. is not an ICC party and doesn’t have a vote, it needs to persuade some ICC parties to insist on this requirement and subsequently vote no. It seems likely that the U.S. can find a few no votes for each amendment, but whether it will be successful in getting the other member states to accept the consensus standard remains to be seen.

 

This outcome seems likely for the proposed amendment on the crime of aggression, where the U.S. will be aided by the significant influence of China and Russia. Staving off the crime of aggression would be a success for the Obama administration. But victory depends on successfully defeating all three proposed amendments. An interesting week lies ahead.

 

— Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom at the Heritage Foundation, and editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).



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