Aggression in the Court
TOD LINDBERG is a Research Fellow at the Hoover Institution at Stanford University and co-author, with Lee Feinstein, of Means to an End: U.S. Interest in the International Criminal Court.See more by this author
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.