by Duncan Hollis
Harold Koh’s ASIL speech drew lots of attention for his defense of the legality of U.S. use of aerial drones. But Koh also spent much of the speech explaining and defending the U.S. decision to reorient its relationship toward the International Criminal Court. He noted U.S. attendance (as an observer) at the ICC Assembly of States Parties in November, and U.S. plans to send a delegation to Kampala, Uganda at the end of next month for the ICC Review Conference. That meeting will be a “big” one as the parties take stock of how the ICC has fared over its first five years of existence, and, more importantly, endeavor to fulfill the Rome Statute’s promise that the Conference will produce an agreement on a definition for the crime of aggression. Koh’s speech painted a positive picture of U.S. engagement with the ICC in the stock-taking exercise, but sounded a more cautionary note on aggression, asking various questions on how the parties would give content to the definition and who would actually apply it in practice.
Although it doesn’t seek to answer Koh’s questions directly, this week, UCLA’s International Justice Clinic produced a report advising the United States on how to proceed in Kampala. The report, authored by six UCLA students, suggests that the United States should promote (and certainly not block) consensus on those elements of the crime of aggression that can be agreed in Kampala, while leaving the harder, jurisdictional issue for later negotiation. The report expresses concern that an “all or nothing” approach by the United States on aggression might derail U.S. efforts to reengage with ICC overall. It goes on to make additional suggestions for building U.S. cooperation with the ICC, via direct engagement with the ICC prosecutor, legislative buy-in through Congressional representation on the U.S. delegation in Kampala, and better U.S. law enforcement accountability on international criminal law issues consistent with notions of complimentarity. Readers wanting to read the whole report can find it here.