USG Concerns with the ICC Aggression Amendments

Former Legal Adviser Harold Koh and Todd Buchwald (Assistant Legal Adviser for UN Affairs) have an excellent article in the recently published April 2015 issue of the American Journal of International Law about the many uncertainties created by amendments to the Rome Statute of the International Criminal Court relating to the crime of aggression that were adopted at the 2010 Kampala Review Conference and that may enter into force after 1 January 2017. The article -- entitled “The Crime of Aggression: The United States Perspective” -- explains the serious U.S. Government legal and policy concerns regarding these amendments. The article expands on remarks given by Under Secretary of State Sarah Sewall in April 2015 at the annual meeting of the American Society of International Law discussing the potential “lasting negative effects” of the amendments, including the “chilling effect” that activation of ICC jurisdiction over the crime of aggression may have on the willingness of states to use force to intervene to prevent humanitarian catastrophes and interference with the ICC’s ability to deter and prosecute acts of genocide, war crimes, and crimes against humanity. Together, the Koh/Buchwald article and the Sewall speech are an important and timely effort to stimulate discussion -- especially among U.S. allies who are ICC members but also regularly participate in international security missions -- about the aggression amendments during 2016 before they potentially take effect in 2017.

Background on the Crime of Aggression. When the Rome Statute was adopted in 1998, it created an International Criminal Court with jurisdiction over four offenses: genocide, war crimes, crimes against humanity, and the crime of aggression. The crime of aggression, however, was left undefined, and the Rome Statute provided that the Court would not exercise jurisdiction over aggression until Rome Statute parties agreed on a definition and the conditions for jurisdiction at a subsequent Review Conference to be held within seven years of entry into force of the Rome Statute. The Rome Statute entered into force on July 1, 2002, and the required Review Conference was convened in 2010 in Kampala.

In the second term of the Bush Administration, I led the Administration’s efforts to engage ICC members in dialogue on international justice issues, emphasizing that the US was prepared to provide support to the Court for certain investigations, such as the genocide in Darfur, while asking Rome Statute parties to respect the U.S. decision not to join the Court. In 2008, in remarks on the tenth anniversary of the Rome Statute, I reiterated that the the US and ICC members shared common goals and that the ICC had a valuable role to play in certain cases, but expressed concern about the upcoming Review Conference, noting that “should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration.”

For this reason, the Kampala conference presented a significant diplomatic challenge for the Obama Administration. The Administration was anxious to improve the US relationship with the ICC but recognized that if Rome Statute parties adopted, over U.S. objections, a definition of aggression and authorized the Court to exercise aggression jurisdiction over non-parties (just as they had done in Rome regarding the crimes of genocide, war crimes, and crimes against humanity), there would be no chance of improved relations. Moreover, because the U.S., as a non-party, would merely have observer status in Kampala, its diplomatic leverage would be limited. (In early 2010, Matt Waxman and I directed a task force for the Council on Foreign Relations that examined the challenges for the U.S. delegation that resulted in a Council Study Report written by Vijay Padmanabhan.) Despite these hurdles, the U.S. delegation (co-headed by Harold Koh and Stephen Rapp) was able to achieve a critical diplomatic success by persuading Rome Statute parties to agree that the crime of aggression will apply only to nationals, or on the territory, of Rome Statute parties. Accordingly, the United States will not be subject to ICC jurisdiction for alleged acts of aggression unless the U.S. becomes to party to the Rome Statute (which is unlikely).

At Kampala, the Rome Statute parties did agree on definitions of an “act of aggression” (which may be committed by a state) and a “crime of aggression” (which may be committed by an individual). They agreed further that the Court will have jurisdiction over the crime of aggression one year after the Kampala amendments have been ratified by thirty states but that the Court will not exercise jurisdiction over the crime of aggression until “after a decision taken after 1 January 2017” by Rome Statute parties. Twenty-six states have now ratified the Kampala amendments.

Legal uncertainties. Although it is clear that the Court will not be able to exercise aggression jurisdiction over the United States (or over any country until after 1 January 2017), the aggression amendments raise numerous legal uncertainties and policy concerns that affect U.S. national security interests. Koh and Buchwald point out serious problems with the “high debatable” definitions of “act of aggression” and “crime of aggression” that will apply to Rome Statute members, including many U.S. allies. More important, they explain that there is now significant confusion among Rome Statute parties regarding whether individual states will be able to “opt in” or “opt out” of the Court’s jurisdiction over aggression. Remarkably, some states and ICC commentators believe that all original parties to the Rome Statute will be subject to the crime of aggression and the Kampala amendments whether they specifically adopt the new amendments or not, as soon as a two-thirds majority of Rome Statute parties adopt a decision after 1 January 2017, on the theory that all Rome Statute parties agreed to be covered by the specific aggression regime to be adopted at a subsequent Review Conference. Koh and Buchwald argue that it is “inconceivable that this conception of how the Rome Statute parties would deal with aggression is anything remotely like what states had agreed at Rome.” They express amazement that two dozen countries (including several European countries) have already ratified the Kampala amendments while important legal uncertainties remain.

Policy Problems. In her April 2015 remarks, Under Secretary Sewall discussed three serious policy problems that are likely to flow from activation of the Court’s aggression jurisdiction. First, being subject to the Court’s aggression jurisdiction may chill the willingness of states to cooperate in certain humanitarian interventions. Second, ICC aggression investigations may interfere with the ability of the international community to resolve conflicts. And third, saddling the fledgling Court with responsibility for investigating and prosecuting aggression will harm the Court’s ability to carry out its core missions of deterring and punishing acts of genocide, crimes against humanity, and war crimes. Sewall was blunt that the U.S. expects ICC parties to solve these problems before adopting the Kampala amendments: “The activation of the Court’s aggression jurisdiction would be a highly consequential, even unprecedented, intervention into the international security architecture, and if the ICC’s states parties proceed, they have an obligation to resolve [these] outstanding questions.”

One Year Warning? Koh and Buchwald emphasize that one year remains before Rome Statute parties potentially vote in 2017 to activate the Court’s aggression regime. They conclude:

It would be prudent for those who care about the Court’s future to use the time we have left wisely, to address the very real issues that need to be faced. The importance of doing so has only been accentuated by some of the divisions that have come into focus much more clearly since Kampala.