ICC Gets Some Love from the Obama Administration. But Can It Endure Past ‘Aggression?’

The  International Criminal Court’s governing body, the Assembly of State Parties, is meeting in New York this week.   The United States has not ratified the treaty, so it is not technically a “state party,” but last year the Obama administration decided that the United States, for the first time, would participate as an observer to the meeting.  At the time, U.S. Ambassador at Large for War Crimes Issues Stephen Rapp said the United States was there to “listen and learn.”  This week, he took that extra step and outlined a new modus vivendi between the United States and the ICC.  Said Rapp:

My own government, which has provided strong and steadfast support for ad hoc tribunals established since the 1990s, [ed note: he is referring to the Yugoslav, Rwanda and Sierra Leone tribunals] hopes that our experience could be of some value to the ICC, for example, in identifying ways to enhance effective cooperation, particularly when it comes to ensuring that those who are now the subject of an arrest warrant are brought before the bar of justice. 

But we also recognize that it is the Court officials themselves who know what assistance is needed. The Obama Administration would therefore like to meet with the Prosecutor and other officials at the International Criminal Court to examine ways that the United States might be able to support the efforts of the ICC that are already underway in the Democratic Republic of Congo, Sudan, Central African Republic, and Uganda. We believe that the ICC must successfully conclude the cases it has launched, that it must keep faith with the victims for whom it must achieve justice.

I’d call that a fairly strong endorsement of the ICC’s current work.  The thing is, it comes at something of an awkward moment.  In late May, the Assembly of State Parties will once again meet, this time in Kampala, Uganda, for a ten year review of the Rome Statute.  Up for discussion is whether or not to include the crime of Aggression as something that falls under the jurisdiction of the ICC.  (Aggression is generally understood as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state when not in self-defense or without the United Nations Security Council invoking Article VII of the UN Charter).  

Needless to say, this is a VERY touchy issue for the United States, which has used armed force without Security Council authorization a couple of times in the past decade or so. In fact, this issue is so sensitive that in the late 1990s it threatened to undermine U.S. participation in the original Rome Statute negotiations.  To keep the United States on board,  negotiators agreed to kick the question down the road until the first review conference…which begins in about six weeks. 

Since the United States is not a member of the ICC, it will not have a formal say in these discussions. But because the Obama administration is participating as an observer–and because there is a genuine effort on the part of the Obama administration to work cooperatively with the ICC — I think it’s fair to say that U.S. concerns will be taken into account. 

So what exactly are those concerns?  State Department legal adviser Harold Koh argues that designating an “agressor” is an inherently political act that will undermine the court’s long term interests.  Another problem is that the defition of “aggression” have not yet been settled.  Still, if state parties to the ICC insist on expanding the court’s jurisdiction to include the crime of aggression, there may be an opportunity for compromise.  In remarks this week, Koh said “that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred.”   This would suggest that the United States would not be completely opposed to including aggression as an ICC-punishable offense so long as the ICC stipulates that only the Security Council can decide if such a crime has occurred. Of course, this means that Russia, China, France, the United States and the United Kingdom will never face prosecution for aggression. But hey, that’s why it would be a “compromise.”