Going into the Review Conference of the International Criminal Court (ICC) in Kampala, Uganda, it was clear that the highest priority on the American agenda was to defeat an amendment that would grant the ICC jurisdiction over the crime of aggression. At the very least, the U.S. wanted to convince the delegates (America is not a party to the Rome Statute, the treaty that established the ICC, and thus did not have a vote at the conference) to grant the court jurisdiction over aggression only in cases where the U.N. Security Council has determined that an act of aggression has been committed. As stated by Stephen Rapp, the American ambassador to the Assembly of States Parties, in November 2009:
I would be remiss not to share with you my country’s concerns about an issue pending before this body to which we attach particular importance: the definition of the crime of aggression, which is to be addressed at the Review Conference in Kampala next year. The United States has well-known views on the crime of aggression, which reflect the specific role and responsibilities entrusted to the Security Council by the U.N. Charter in responding to aggression or its threat, as well as concerns about the way the draft definition itself has been framed. Our view has been and remains that, should the Rome Statute be amended to include a defined crime of aggression, jurisdiction should follow a Security Council determination that aggression has occurred.
In subsequent statements, both Ambassador Rapp and Harold Hongju Koh, a legal adviser to the Department of State, listed concerns they had with the proposed crime of aggression. These included worries about the definition, who decides when the court should exercise its jurisdiction, whether the crime of aggression would weaken the Court, and how enforcement would affect the core mission of the Court. They reiterated these concerns during the first week of the Review Conference.
In the end, however, the U.S. failed in its main objectives. If confirmed in a second amendment after January 1, 2017, the final resolution adopted by the delegates, which grants the ICC jurisdiction over the crime of aggression and specifies the parameters for when and how the ICC may exercise that jurisdiction, will go into effect. Under this amendment, while the ICC prosecutor would have to notify the U.N. Security Council that he wished to proceed with an investigation, he would be allowed to proceed without Security Council approval if the Council had not acted within six months and the ICC Pre-Trial Chamber authorized the investigation. This violates the primary authority granted the U.N. Security Council in the U.N. Charter to determine whether an act of aggression has been committed.
But the U.S. was able to address many of its concerns during conference negotiations. For instance, the final draft allows the Security Council to defer an ICC investigation of an alleged crime of aggression for one year under Article 16 — an action that is renewable. Although getting a resolution through the Security Council is nearly always a hard slog, this option does provide a potential check on the non–Security Council route to prosecuting alleged crimes of aggression.
The resolution also specifically bars the ICC from exercising jurisdiction over countries that are not party to the Rome Statute, as well as countries that are party to the statute but have not themselves ratified the amendment. Even an ICC state party that has ratified the amendment may lodge a declaration with the ICC Registrar stating that it does not accept the court’s jurisdiction over aggression. There is no expiration on the declaration, although states are required to reconsider such declarations within three years of lodging them.
In addition, the resolution staves off the potential for ICC aggression investigations until at least 2017, and even then, a two-thirds majority of states parties must approve the crime’s entry into force, so the court may end up waiting far longer before it can exercise jurisdiction over aggression.
Finally, the U.S. was able to insert several “understandings” into the resolution. These understandings affirm that the crime of aggression does not limit or prejudice existing or developing rules of international law for purposes other than the statute; state that the resolution shall not be interpreted as “creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State”; emphasize that a determination of an act of aggression must weigh “all of the circumstances of each particular case” including the gravity of the acts and their consequences; and assert that the character, gravity, and scale of a crime of aggression must all be sufficient to meet the standard of a “manifest” violation of the U.N. Charter. Taken together, these understandings should help guide the court in dismissing lesser, frivolous, or politically motivated allegations of aggression and protect military missions based on self-defense, humanitarian intervention, or other legitimate purposes consistent with the U.N. Charter.
As it stands, the Obama administration and Congress should be concerned about the adoption of crime of aggression and wary of how the ICC might exercise it jurisdiction over that crime in the future. Despite able diplomacy and powerful allies, the U.S. did not achieve its primary objectives.
Nonetheless, overall, the U.S. effort in Kampala has to be judged a qualified success. Article 124 was maintained, although he U.S. played a minimal role in this outcome. The Belgian amendment was adopted, creating an unfortunate precedent for expanding the list of weapons whose use are considered war crimes under the Rome Statute, but the risks to the U.S. were largely negated. And even on the question of aggression, the success of the U.S. and similarly concerned states in placing checks on the court’s ability to exercise jurisdiction over aggression in significant ways should be recognized as a hard-fought, albeit less than ideal, achievement.
– Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies at the Heritage Foundation. He is editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).