Aggression in the Court

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Perhaps it was the prospect of a trip out of Kampala, Uganda, to the World Cup games in South Africa that put delegates to the International Criminal Court Review Conference in a magnanimous mood last June. Whatever the reason, years of acrimony and dissension melted into agreement. The consensus would have been remarkable even if the conference's agenda had been banal. In fact, it was not. At hand was the issue of the ICC's jurisdiction over the crime of aggression -- a subject so fraught that the delegates who originally negotiated the creation of the ICC in 1998 were only able to do so after deferring this issue until now, 12 years later.

The first noteworthy element of the conference was the presence of U.S. officials. The United States signed, but never ratified, the 1998 Rome Statute that created the court, and it has no vote in the ICC's Assembly of States Parties (ASP). Like other nonparties, though, it has always been eligible to attend meetings as an observer. But Washington has largely kept the ICC at arm's length since the Bush administration decided to withdraw the U.S. signature in May 2002, shortly before the court became operational. The administration feared that, once functional, the court would be a threat to U.S. sovereignty and put U.S. officials and military personnel at risk of prosecution in the course of their duties.

The Obama administration, which is generally more sympathetic to the ICC than its predecessor, took almost a year to review its policies toward the court before reengaging with it. The administration's first step was to send an observer to an ASP meeting in November 2009. Then, in a major address in March 2010, State Department Legal Adviser Harold Koh affirmed U.S. intentions to cooperate with the court. In June, Koh and Stephen Rapp, the ambassador-at-large for war crimes, led an observer delegation in Kampala of officials from a number of agencies and the military.

Much of the first week of the ICC conference was devoted to an assessment of the court's progress since it opened. The culmination was a declaration that included language welcoming the cooperation of nonparties in court proceedings. This pragmatic "welcome back" seemed an outgrowth of U.S. acknowledgement that the ICC is here to stay, as well as the court's recognition that, even though the United States will likely not join anytime soon, U.S. participation would be useful.

Then came the contentious issue of the crime of aggression. The idea of holding national leaders to account for waging wars of aggression has genuine moral appeal and historical pedigree. German and Japanese military leaders were prosecuted for aggression during the Nuremberg and Tokyo trials following World War II. But who defines the term and tries the cases is a thornier issue. Noting the absence of consensus on a definition of aggression in the run-up to the conference, U.S. officials questioned whether taking the matter up was not a bridge too far -- a foray into an area so contested that addressing it could undermine the court's other work.

The key question in Kampala was the relationship of the ICC to the United Nations Security Council. The UN Charter grants the Security Council "primary responsibility for the maintenance of international peace and security. If "primary responsibility" were translated into a requirement that the Security Council issue a finding of aggression before the ICC could act, the P-5 would be able to use their veto power to ensure that their nationals -- and their allies' nationals -- would never be at risk of prosecution. Such a situation would preserve the status quo, where might -- in the form of Security Council veto power -- makes right. If, on the other hand, the ICC asserted authority to operate independently on aggression, including an ability to prosecute nationals of nonparties, U.S. domestic politics would be so roiled as to doom the U.S. policy of practical cooperation.

In the end, the conference came to a consensus on a definition of aggression and on procedures for taking action, but only by providing adequate protections for the P-5. The ICC will not be able to bring aggression charges against a national of a state that is not a member of the ICC without a Security Council resolution under Chapter VII (responding to threats to peace and security). This protection is even stronger than that which governs the court's handling of other crimes; for example, the court could, in principle, charge a U.S. national for committing war crimes if he did so on the territory of a state party to the ICC. This is not the case for crimes of aggression.

If the ICC prosecutor wants to investigate a potential crime of aggression in the absence of a Security Council resolution, he first has to seek one. The Security Council has six months to take action before the prosecutor can investigate on his own authority. Finally, the Security Council retains the power to stop any investigation by voting annually to defer it.