In the International Criminal Court (ICC) Review Conference’s discussion of the “crime of aggression,” the U.S. agenda — convincing ICC member states to adopt a version of the “crime of aggression” that would prevent the ICC from investigating or prosecuting individuals for that crime without an express determination by the U.N. Security Council that an act of aggression had been committed — appeared to be gaining speed. This momentum was based on the impact of strong interventions by the U.S., China, and Russia, all of whom urged rejection of proposals that would allow the ICC to proceed with aggression investigations without a determination by the Security Council. Such investigations would be inconsistent with the U.N. charter; would violate customary international law; could criminalize the use of military force in humanitarian operations intended to prevent crimes against humanity, war crimes, or genocide; and could strain international relations if states implement the crime of aggression domestically and apply universal jurisdiction to arrest and try officials of other states for alleged acts of aggression.
Understandably, the member states were wary of dismissing the concerns of these influential states. But a weekend of contemplation and, likely, heavy lobbying by pro-ICC non-governmental organizations and member states that do not want the crime of aggression subject to Security Council decisions apparently revived enthusiasm among many wavering delegates for having multiple triggers for the crime of aggression.
Monday’s discussion focused exclusively on gauging where the delegates stood on the proposed definition of the crime of aggression and what trigger(s) should permit the ICC to investigate allegations of aggression and prosecute credible cases. Dozens of countries voiced their support for giving the ICC prosecutor authority to proceed with an investigation if the U.N. Security Council fails to determine that an act of aggression occurred. The only check on this authority would be approval by another organ of the ICC, the Pre-Trial Chamber.
Although the U.S. and Russia reiterated their objections on Monday, the apparent impact was muted. In a worrying sign, the U.S. offered five “understandings” that it suggested could be included in Annex III (“Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression”) of the resolution on Crime of Aggression, which, if the member states can reach agreement, will be approved by the member states this week. The U.S. hopes that if these understanding are included in the resolution, they will be deemed the intent of the member states by the ICC prosecutor and judges when considering alleged crimes of aggression and so guide the actions of the court.
This is clearly a fall-back option. It would be less effective than actually limiting the authority of the ICC to investigate alleged acts of aggression in the text of the amendment. That the U.S. is offering these understandings indicates that it is doubtful of the outcome. Even more worrying is the fact that few member states seemed interested in including the U.S. understandings.
If the member states agree to adopt an amendment on the crime of aggression, there is no way for the administration to put a good face on the U.S.’s failure to get the member states to grant the U.N. Security Council exclusive authority to determine that an act of aggression has occurred. It would make U.S. service members and officials more vulnerable to the ICC, would undermine the authority of the U.N. Security Council (and, by extension, the power of the U.S. as a veto-wielding permanent member of the Security Council), and would open the door to legal wrangling and accusations every time the U.S. lawfully uses force to defend itself, its allies, and its interests.
The Obama administration argued that U.S. engagement with the ICC would lead to more positive outcomes at the Review Conference than the Bush administration’s policy of not attending. They have a steep road ahead if that prediction is to be realized.