by Kevin Jon Heller
Julian beat me to the punch regarding the new Council on Foreign Relations report, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference. The first thing to note is that it isn’t really a “report.” Reports have sober, reasoned analysis, careful argumentation, and document their controversial claims with footnotes to relevant material. This “report,” by contrast, is nothing more than a political call-to-arms to undermine the ICC, one that simply regurgitates the same tired points that the US has been making for 15 years.
The report is relatively short and worth reading in its entirety. If you don’t have enough time, though, it can be reduced to the following three propositions:
[1] The US has the right to unilaterally use military force whenever and wherever it wants to.
[2] ICC jurisdiction over the crime of aggression would limit that right, so the Review Conference negotiations must be undermined.
[3] The US should avoid being seen as openly undermining the ICC’s negotiations, because transparency will make undermining those negotiations more difficult.
Some specific thoughts on the report:
After World War II, the United States led Allied efforts to prosecute top German and Japanese officials for atrocity crimes and crimes against the peace (aggression), overcoming British and Soviet arguments for summary execution of the enemy leadership.
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The General Assembly resolution contains a nonexhaustive list of acts that may constitute aggression, while leaving open the possibility that additional acts may constitute aggression as determined by the Security Council. The resolution represented a political compromise, and many international law experts believe this definition is too vague for the purposes of imposing individual criminal liability.
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Two issues divided the Working Group. The first was whether the state whose nationals are alleged to have committed the crime must consent to the ICC’s jurisdiction over aggression, or whether the consent of the victim state is sufficient. States in favor of requiring the consent of the alleged aggressor state argue that it is mandated by international law.
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The United Kingdom and France have argued that given the Security Council’s primary role in regulating the use of force, including the determination that acts of aggression have occurred, it must have the last word on whether the ICC may move forward with prosecutions. Opponents of a decisive Security Council role have pointed to the risk of deadlock in the council, noting the council’s historical reluctance to label actions as aggression.
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Given these divisions, the review conference is faced with three options… 3. Send the entire aggression issue to a new working group for further consideration. The United States is the only country to have openly advocated for this approach.
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The proposed definition reflects this uncertain state of the law by merely listing acts that might constitute aggression without defining when those acts are unlawful. The definition does not address how claims of self-defense or humanitarian necessity affect the categorization of the use of force as aggression.
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It is similarly unclear whether a preventive or preemptive strike against a proliferator of weapons of mass destruction (WMD)—for example, a U.S. or Israeli strike against suspected Iranian nuclear weapon program sites—would constitute criminal aggression.
thought experiment — without veto, would the us prefer a political body like the SC to determine or a legal body like the icj/icc? US okay with present arrangement for one reason — the veto.
If aggression existed as a crime in 2003, for example, Iraq could have consented to the jurisdiction of the ICC after the U.S. invasion, potentially exposing U.S. leaders to investigation and prosecution for the decision to use force. In such a scenario, the ICC prosecutor could have investigated U.S. or coalition partners, asking them for detailed explanations of their legal rationale as well as for classified intelligence information regarding Iraq’s alleged weapons programs. The prosecutor might have then second-guessed the conclusion by the United States and other governments that their use of force was justified under existing UN Security Council resolutions.
one can only hope so! uniquely american…
Even if the definition were clear, allowing ICC aggression prosecutions to proceed without Security Council authorization could undermine Security Council efforts—including ongoing diplomacy—to restore peace and stability in conflicts, perhaps by sending conflicting signals to the parties regarding the merits of the underlying dispute.
This from a country that until recently was 1 billion in arrears and was willing to veto peacekeeping operations unless Americans were given immunity!
These concerns suggest that the Security Council, which is entrusted by the UN Charter with responsibility for
maintaining international peace and security, should oversee determinations regarding aggression.
It does — through deferral power. but no veto, which is the real objection.
Although non-P5 states are less concerned about preserving Security Council authority, some recognize from a pragmatic standpoint the importance of support among P5 members for the court’s agenda, given the practical
difficulties in apprehending suspects and collecting evidence without the support of the most powerful states.
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The goodwill created by the Obama administration’s decision to participate at the review conference could be quickly dissipated by an overly assertive American strategy, especially if critics successfully characterize the United States as obstructionist.
The arrogance! bunch of children who will be thrilled the US shows up.
Although U.S. negotiators could suggest specific changes to the text that would improve its viability as a criminal provision, this strategy is unlikely to succeed and could be counterproductive…. Offering alternative language may also create false expectations regarding U.S. support for aggression with an improved definition.
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Rome Statute parties are evenly divided on the question of whether the consent of the alleged aggressor state is
required to activate aggression jurisdiction.
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[T]he United States must be clear that it will not support an outcome that allows the prosecutor to proceed with aggression prosecutions absent the consent of both parties involved and approval of the Security Council.
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Nevertheless, given the inherently political nature of evaluating the use of force and the need to consider designations of aggression in the context of broader efforts to resolve conflicts and preserve stability, there is no viable substitute for Security Council primacy in making aggression determinations.
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The United States should make clear that if the state parties decide to activate the court’s jurisdiction over aggression without consensus (and by implication without addressing the most significant U.S. concerns), the likelihood that important nonparty states, including the United States, Russia, and China, will join the court will be greatly diminished.
Concern troll…
The United States should avoid obstructing the decisions of state parties on items of the review conference agenda where the United States lacks a national interest.
At least it admits obstruction with the rest!
Given the need for the United States to be active on the issue of aggression, and the opportunity to participate constructively in the stocktaking sessions, the delegation should remain neutral, or even voice support, on the remaining agenda items if they do not implicate significant U.S. interests.
Again, patronizing…
The United States is currently engaged in a noninternational armed conflict with al-Qaeda.