[Senate Prints 111-55]
[From the U.S. Government Publishing Office]
111th Congress S. Prt.
2d Session COMMITTEE PRINT 111-55
_______________________________________________________________________
INTERNATIONAL CRIMINAL COURT
REVIEW CONFERENCE
KAMPALA, UGANDA
MAY 31- JUNE 11, 2010
__________
A JOINT COMMITTEE STAFF TRIP REPORT
prepared for the use of the
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
One Hundred Eleventh Congress
Second Session
September 2, 2010
U.S. GOVERNMENT PRINTING OFFICE
58-002 PDF WASHINGTON : 2010
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin BOB CORKER, Tennessee
BARBARA BOXER, California JOHNNY ISAKSON, Georgia
ROBERT MENENDEZ, New Jersey JAMES E. RISCH, Idaho
BENJAMIN L. CARDIN, Maryland JIM DeMINT, South Carolina
ROBERT P. CASEY, Jr., Pennsylvania JOHN BARRASSO, Wyoming
JIM WEBB, Virginia ROGER F. WICKER, Mississippi
JEANNE SHAHEEN, New Hampshire JAMES M. INHOFE, Oklahoma
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
Frank G. Lowenstein, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
----------
Page
Letter of Transmittal............................................ v
Background....................................................... 1
Pre-Conference Discussions of Agression.......................... 1
Historical U.S. Position on Aggression........................... 3
The Obama Adminstration's Approach to the Kampala Conference..... 4
Discussions on Aggression at the Kampala Conference.............. 6
Outcome.......................................................... 8
Analysis of Outcome.............................................. 9
Implications for the United States........................... 9
Implications for the ICC..................................... 11
Further Observations on the Negotiation Process.................. 11
Annex--ICC Review Conference Decision on Aggression.............. 13
(iii)
LETTER OF TRANSMITTAL
----------
United States Senate,
Committee on Foreign Relations,
Washington, DC, September 2, 2010.
Dear Colleagues: In May 2010, we directed two members of
the Foreign Relations Committee staff, Minority Chief Counsel
Michael Mattler and Majority Deputy Chief Counsel Andrew
Keller, to observe U.S. participation at the Review Conference
of the Rome Statute of the International Criminal Court (ICC),
which took place in Kampala, Uganda, from May 31-June 11, 2010.
The conference represented the first time parties to the ICC
considered amendments to the Rome Statute since it entered into
force in 2002. We thank the co-heads of the U.S. delegation,
State Department Legal Adviser Harold Koh and Ambassador at
Large for War Crimes Issues Stephen Rapp, along with their
colleagues from the Departments of State, Defense, and Justice,
for including Mr. Mattler and Mr. Keller as part of the U.S.
delegation.
The United States is not a party to the ICC, and is
unlikely to become a party anytime soon. Nonetheless, the
United States had interests at stake in the discussions at
Kampala. The principal focus of the Kampala Conference was
consideration of proposals to add to the ICC's jurisdiction a
new crime of aggression, some of which could have seriously
affected uses of military force by the United States and its
allies. The United States also had an interest in better
understanding the state of the ICC's work generally, and its
prospects for making an effective contribution to promoting
accountability for genocide, war crimes, and crimes against
humanity. In this regard, the United States, under both the
George W. Bush and Obama administrations, has supported the
ICC's investigation of such crimes in Darfur, pursuant to a
2005 referral by the U.N. Security Council.
As this report highlights, the Kampala Conference adopted a
complicated decision that envisions the future addition of a
crime of aggression to the ICC's jurisdiction. The proposed
aggression regime is flawed in several respects, but
nonetheless contains important protections for U.S. interests.
Most significantly, U.S. persons, including U.S. officials and
military members, could not be investigated or prosecuted for
aggression by the ICC without the consent of the United States.
The proposed regime will not enter into force for at least
seven years, and will do so only after a further decision by
the ICC's parties to bring it into force. U.S. participation at
the Kampala Conference played an important role in securing
these protections.
(v)
The report also observes that, with the Conference's focus
on adding a new crime to the ICC's mandate, ICC parties spent
comparatively little energy at the Conference addressing a
range of operational challenges currently faced by the Court.
Eight years after entering into force, the ICC has yet to
complete its first trial and is encountering a variety of
practical obstacles to its effectiveness. Absent greater focus
on addressing such difficulties in the ICC's operations, the
court may continue to struggle in carrying out its basic
judicial functions.
We hope you find this report useful and informative. We
welcome any comments you may have on it.
Sincerely,
John F. Kerry,
Chairman.
Richard G. Lugar,
Ranking Minority Member.
INTERNATIONAL CRIMINAL COURT
REVIEW CONFERENCE
KAMPALA, UGANDA, MAY 31- JUNE 11, 2010
----------
Background
The International Criminal Court was established in 1998.
Under the treaty establishing the ICC, known as the Rome
Statute, the Court has jurisdiction to investigate and
prosecute cases of genocide, war crimes, and crimes against
humanity. The treaty entered into force in 2002 and currently
has 113 states parties. The United States is not a party to the
ICC.
On May 31, 2010, the parties to the ICC convened a 2-week
conference to assess the work of the ICC since its inception
and to consider amendments to the Rome Statute. The United
States sent a delegation to the conference and participated as
an observer.
The principal issue before the conference was whether to
amend the Rome Statute to add a new crime--aggression--to the
ICC's jurisdiction. The conference also considered two more
technical amendments to the statute, and held a series of
moderated discussions to take stock of elements of the ICC's
performance to date. The stocktaking discussions addressed the
relationship between the court's work and broader efforts to
resolve conflict and restore peace, the impact of the court's
work on victims of crimes, the extent of cooperation with the
court by states, and efforts by states to establish
accountability for serious crimes at the national level. This
report addresses the Conference's discussions and decisions
related to the crime of aggression.
Pre-Conference Discussions of Aggression
As adopted in 1998, the Rome Statute gave the ICC
jurisdiction over three crimes: genocide, war crimes, and
crimes against humanity. At the Rome Conference, negotiators
discussed giving the court jurisdiction over the additional
crime of aggression, but were unable to agree on a definition
of the crime or on the conditions under which the ICC might
exercise jurisdiction over it. As a compromise, the Rome
Statute provided that the ICC could exercise jurisdiction over
aggression in the future if the statute were amended to address
these issues.
Following the Rome Conference, the ICC's Assembly of States
Parties established a special working group on the crime of
aggression. The working group met between 2003 and 2009 and
developed proposals on both a definition of the crime
aggression and on conditions under which the ICC might exercise
jurisdiction over it. The United States did not participate in
the working group. The working group's proposals are described
briefly below.
Definition of Aggression--In contrast to the other crimes
within the ICC's jurisdiction, aggression has not previously
been widely employed as a criminal law concept in domestic or
international law. In the aftermath of World War II, the
International Military Tribunals in Nuremburg and Tokyo
prosecuted a few German and Japanese officials for ``crimes
against peace,'' though there was no widely agreed definition
of this concept prior to the war. Following the war, the U.N.
Charter gave the Security Council the authority to determine
when a state had committed an ``act of aggression'' and to
decide on measures to be taken to restore international peace
and security. But the Charter's treatment of aggression does
not provide for criminal liability on the part of individuals.
The working group recommended a definition based largely on
a 1974 U.N. General Assembly resolution, which was adopted for
the purpose of providing guidance to the U.N. Security
Council's use in determining whether a state had committed
aggression for the purposes of the U.N. Charter. The working
group's definition reads as follows:
Article 8 bis--Crime of aggression
1. For the purpose of this Statute, ``crime of aggression'' means
the planning, preparation, initiation or execution, by a person in a
position effectively to exercise control over or to direct the
political or military action of a State, of an act of aggression which,
by its character, gravity and scale, constitutes a manifest violation
of the Charter of the United Nations.
2. For the purpose of paragraph 1, ``act of aggression'' means the
use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations. Any of the
following acts, regardless of a declaration of war, shall, in
accordance with United Nations General Assembly resolution 3314 (XXIX)
of 14 December 1974, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of
the territory of another State, or any military occupation,
however temporary, resulting from such invasion or attack, or
any annexation by the use of force of the territory of another
State or part thereof;
(b) Bombardment by the armed forces of a State against the
territory of another State or the use of any weapons by a State
against the territory of another State;
(c) The blockade of the ports or coasts of a State by the
armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea
or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the
territory of another State with the agreement of the receiving
State, in contravention of the conditions provided for in the
agreement or any extension of their presence in such territory
beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it
has placed at the disposal of another State, to be used by that
other State for perpetrating an act of aggression against a
third State;
(g) The sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount
to the acts listed above, or its substantial involvement
therein.
Three key elements are at the core of the proposed
definition:
First, aggression is a crime committed by political or
military leaders--such as heads of state or senior military
officials--who, on behalf of a state, plan or direct acts of
aggression carried out by others. Aggression is not committed
by officials or soldiers carrying out the decisions of others.
Second, aggression involves the use of force in violation
of the U.N. Charter. Under the U.N. Charter, states are
prohibited from using force against the territorial integrity
or political independence of another state except in self-
defense from an armed attack or if authorized by the U.N.
Security Council.
Third, aggression arises only in the case of ``manifest''
violations of the U.N. Charter, meaning that the character,
gravity, and scale of the violation are clearly established.
Conditions for the Exercise of Jurisdiction Over
Aggression--The working group was unable to arrive at a
consensus recommendation regarding the conditions under which
the ICC might exercise jurisdiction over aggression.
Delegations fell broadly into two camps on this issue.
Permanent members of the U.N. Security Council took the
position that the ICC should exercise jurisdiction over
aggression only in cases in which the U.N. Security Council had
specifically asked it to do so. The U.N. Charter vests the
Security Council with the responsibility for determining the
existence of an act of aggression, and measures to be taken to
maintain or restore international peace and security. An
independent role for the ICC in investigating and prosecuting
aggression could prejudice the Council's efforts to resolve
situations involving potential aggression and create the risk
of broader conflict.
Most other countries supported some authority for the ICC
to exercise jurisdiction over aggression independently of the
U.N. Security Council. These countries were concerned that a
deadlock in the Security Council over a particular case would
prevent the ICC from being able to address a case of
aggression. They also argued that the Security Council's
involvement in deciding whether cases could proceed would
inject political considerations into judicial matters and
undermine the integrity of the ICC's proceedings.
Historical U.S. Position on Aggression
While the United States did not participate in the work of
the Assembly of States Parties' special working group on
aggression, the United States has historically expressed
concerns about proposals to include aggression within the ICC's
jurisdiction.
In 1998 testimony before the Senate Foreign Relations
Committee, the Clinton administration's chief negotiator at the
Rome Conference, David Scheffer, expressed the following set of
concerns about the treatment of aggression in the original Rome
Statute:
We are disappointed with the treatment of the crime
of aggression. We and others had long argued that such
a crime had not been defined under customary
international law for purposes of individual criminal
responsibility. We also insisted, as did the
International Law Commission in 1994, that there had to
be a direct linkage between a prior Security Council
decision that a state had committed aggression and the
conduct of an individual of that state. The statute of
the court now includes a crime of aggression, but
leaves it to be defined by a subsequent amendment to be
adopted 7 years after entry into force. There is no
guarantee that the vital linkage with a prior decision
by the Security Council will be required by the
definition that emerges, if in fact a broadly
acceptable definition can be achieved. We will do all
we can to ensure that such linkage survives.\1\
---------------------------------------------------------------------------
\1\ Statement of David Scheffer, Ambassador at Large for War Crimes
Issues, to the U.S. Senate Committee on Foreign Relations, July 23,
1998.
This statement reflected two principal concerns at the
heart of the U.S. position:
First, the United States has expressed concerns that
aggression has not been sufficiently defined to form an
appropriate basis for criminal prosecutions. Prosecutions based
on a definition of aggression that does not reflect customary
international law would create the risk that individuals could
face criminal penalties for uses of force that have not
traditionally been considered unlawful by the international
community. This could serve to discourage a wider range of uses
of force than are prohibited under existing customary
international law, including some that may be necessary to
protect the security interests of the United States and its
allies. In addition, in the absence of a clear and accepted
definition of the crime, potential defendants would not have
clear guidance about what actions are prohibited, raising
fundamental questions of fairness and due process in any
criminal proceedings.
Second, the United States has expressed concerns about the
potential impact of an ICC crime of aggression on the role and
authority of the U.N. Security Council. As a permanent member
of the Security Council, the United States has an interest in
ensuring that actions by the ICC in relation to alleged cases
of aggression do not interfere with the Council's own efforts
to address matters of international peace and security.
In addition to these considerations, U.S. policy has also
stressed a strong interest in protecting U.S. persons,
including U.S. officials and members of the armed forces,
against potential ICC investigations or prosecutions for
aggression, which may be unfounded or politically motivated. As
a nonparty to the ICC, the United States has long objected to
any efforts by the ICC to assert jurisdiction over Americans
with respect to its core crimes of genocide, war crimes, and
crimes against humanity. Securing protections against such
assertions of jurisdiction by the ICC was a core objective of
the American Servicemembers' Protection Act, passed by Congress
in 2002.\2\ Concerns about U.S. exposure to an ICC regime for
aggression would be especially acute, given that aggression
cases would involve potential criminal prosecution of the
President and other senior political and military leaders for
their decisions and actions related to matters of U.S. national
security.
---------------------------------------------------------------------------
\2\ 22 U.S.C. 7421 et seq.
---------------------------------------------------------------------------
The Obama Administration's Approach to the Kampala Conference
The administration's decision to attend the Kampala
Conference as an observer reflected two principal
considerations. First, the administration sought to address
U.S. concerns and protect U.S. interests with respect to the
proposed ICC aggression regime, including those discussed
above. Second, the administration sought to express and
reinforce longstanding U.S. support for efforts to promote
accountability for international crimes such as genocide,
crimes against humanity, and war crimes. This included
exploring ways in which the United States, as a nonparty to the
ICC, could work with ICC members to advance shared objectives
in this area.
Consistent with these objectives, the United States
delegation in Kampala raised a series of concerns in connection
with the conference's consideration of the crime of aggression.
These concerns fell into four main categories:
Concerns With the Content of the Definition--The U.S.
delegation observed that the proposed aggression definition was
vague in a number of respects, creating uncertainty on several
important issues. They noted that the proposed definition
applied to ``acts of aggression'' rather than ``wars of
aggression'' that were the subject of prosecution at Nuremburg,
leaving unclear the scope of the crime. They also noted that it
was unclear how the term ``manifest'' in the definition would
apply, including whether it must be shown that a state was
``manifestly'' not acting in self-defense or with the consent
of the state where force was used. It was also unclear how the
``manifest'' standard would apply in cases where force was used
for the purpose of preventing serious crimes such as genocide,
war crimes, and crimes against humanity. The U.S. delegation
also noted ways in which the definition departed from existing
customary international law, as well as from the General
Assembly Resolution on which the definition was based. These
included the definition's failure to specify that only the most
serious and dangerous forms of illegal uses of force constitute
aggression, with the determination whether an act of aggression
has occurred requiring careful consideration of the
circumstances of each particular case, including the purpose
for which force was used.
Concerns With the Conditions for the Exercise of
Jurisdiction Over Aggression--Consistent with the historical
U.S. position, the U.S. delegation took the position that a
prior decision of the U.N. Security Council that aggression had
occurred should be a precondition to the ICC's exercise of
jurisdiction over the crime of aggression in any case. The
delegation opposed proposals for alternative jurisdictional
schemes in which the ICC could exercise jurisdiction over
aggression without prior Security Council approval, including
proposals in which the ICC Prosecutor could proceed with cases
after a period of notice to the Security Council unless the
Council affirmatively decided that the case should not proceed.
The U.S. delegation also stressed longstanding U.S. concerns
about any effort to subject states to ICC jurisdiction over
aggression without their consent, except in cases of referral
by the U.N. Security Council.
Concerns With the Impact of the ICC's Aggression Regime for
National Justice Systems--The U.S. delegation expressed concern
that adding aggression to the Rome Statute could lead to
efforts by individual states to prosecute leaders of other
countries for aggression through their national courts. This
risk arises because, under the Rome Statute, the ICC is a court
of last resort and may exercise jurisdiction over a crime only
where relevant states are unwilling or unable to investigate
and prosecute them through their national justice systems.
Under this system, states are encouraged to prosecute crimes
domestically rather than requiring recourse to the ICC. The
U.S. delegation expressed concerns that encouraging domestic
prosecutions of aggression, which could involve two countries
to a conflict each trying to prosecute the other's leaders in
its own courts, could exacerbate tensions and undermine
international peace and security.
Concerns With the Process for Making Decisions About
Aggression--In light of the divergent views over the
circumstances in which the ICC might exercise jurisdiction over
aggression, the U.S. delegation also stressed the importance
that any decisions be based on a consensus among ICC members
(which would necessarily include the United Kingdom and France,
which are permanent members of the U.N. Security Council). The
U.S. delegation observed that all prior Rome Statute crimes had
been adopted by consensus and that adoption of a regime for the
politically charged crime of aggression over the objections of
some countries would undermine the legitimacy of both the crime
and the ICC itself.
Discussions on Aggression at the Kampala Conference
The negotiations at the Kampala Conference focused on four
principal issues: the content of the definition of aggression,
the conditions for the exercise of jurisdiction over
aggression, whether the aggression regime would apply to states
that had not consented to it, and the process for adopting
amendments to the Rome Statute regarding aggression.
Content of the Definition--In spite of U.S. criticism of
the definition of the crime of aggression proposed by the
Assembly of States Parties' special working group, the
definition itself was widely supported at the conference,
including by U.S. allies such as the United Kingdom and France.
This support did not appear to be based on substantive
disagreement with the questions raised by the United States
about the definition. Instead, it seemed to reflect concern
that reopening the definition would delay the process of
reaching a final decision on aggression (to which many
countries were firmly committed) and that other compromises
that had been made in arriving at the proposed definition might
be revisited if the text were reconsidered.
While the Conference was accordingly unwilling to entertain
changes to the definition's text, delegations were willing to
discuss adopting ``understandings'' addressing elements of the
definition. Such understandings were viewed as a means of
providing authoritative guidance to the ICC Prosecutor and
judges on interpretive issues related to the definition. The
United States proposed a series of understandings to address
concerns it had raised about the definition. These included
understandings designed to provide greater clarity about the
meaning of a ``manifest'' violation of the U.N. Charter as used
in the definition, to specify that an ICC aggression regime
would not create the right or obligation for states to exercise
domestic jurisdiction over alleged acts of aggression by other
states, and to provide greater specificity about the level of
gravity required to establish the existence of aggression.
Conditions for the Exercise of Jurisdiction--This
represented the most contentious issue of the conference. Most
delegations opposed the position of the five permanent members
of the Security Council that the ICC Prosecutor should have
authority to investigate and prosecute aggression only in cases
where the Council had previously determined that a state had
committed an act of aggression. This majority view reflected a
concern that the ICC's judicial role required it to operate
independently from political constraints. It also reflected
deep dissatisfaction with the Security Council among developing
countries, and concern that Security Council decisions would
reflect the interests of the five permanent members rather than
the interests of the international community as a whole.
Most delegations proposed giving the Security Council at
most a fixed period of time to determine whether a state had
committed aggression in connection with a situation in which
the ICC Prosecutor wished to investigate or prosecute an
individual for aggression. In the absence of a determination by
the Security Council by the end of the time period, these
countries urged that the Prosecutor have the authority to move
forward with the case on his own initiative.
Consent Requirement--Delegations differed over whether a
state must have consented to the ICC's aggression jurisdiction
in order for its nationals to be subject to investigation and
prosecution for aggression by the ICC. States were more divided
on this question than on the question related to the role of
the Security Council. In general most countries, particularly
those in the developing world, opposed a requirement that a
state consent before an aggression regime would apply to its
nationals. They argued that prosecutions for aggression would
be less likely, and the deterrent created by the regime less
effective, if it applied only to states that had consented. A
sizeable minority, including a number of European countries,
supported a consent requirement, arguing that such consent is a
basic requirement to bind a state under international law. All
delegations agreed that no state consent would be required
where the ICC was prosecuting aggression at the request of the
U.N. Security Council, which has the authority to bind U.N.
member states pursuant to the U.N. Charter.
Process for Adopting Amendments Related to Aggression--
Delegations also differed over the correct process for amending
the Rome Statute to address aggression. At issue in the debate
were two alternative methods provided for under the Rome
Statute for adopting amendments. Under the first method,
contained in Article 121, paragraph 4, amendments are binding
on all Rome Statute parties once they have been approved by \7/
8\ of the states parties. Under the second method, contained in
Article 121, paragraph 5, amendments are binding only on those
states that have accepted them.
Delegations' positions on these procedural questions often
mirrored their positions on whether state consent should be
required for the ICC to have jurisdiction over the state's
nationals. States opposed to a consent requirement tended to
favor an amendment process that would bind all states so that
an aggression regime could apply universally even if a minority
of states objected to it and declined to ratify it. Supporters
of a consent requirement generally supported an amendment
process in which amendments would apply only to those states
that ratified them, so that nonratifying states could avoid
being bound by a regime that was adopted over their objections.
Outcome
Discussions at the Kampala Conference were unable to fully
resolve the most contentious issues related to the proposed
aggression regime. The Conference adopted a complicated
decision that reflected compromises on several key issues. The
decision provides that the envisioned aggression regime will
not become operational for at least seven years, and even then
only after a further decision by the ICC's Assembly of States
Parties to bring it into effect. The text of the decision is
attached as an annex to this report. Below is a summary of the
key provisions of the decision:
Definition of Aggression--The Conference adopted the
definition of aggression proposed by the Working Group without
any amendment. In an effort to address concerns raised by the
U.S. delegation about lack of clarity in aspects of the
definition, the Conference adopted a series of interpretive
understandings relating to aspects of the definition. Among the
approved understandings were:
An understanding specifying that, in assessing
whether an act of aggression constitutes a ``manifest''
violation of the U.N. Charter, the character, gravity,
and scale of the act must all be considered, and that
no one of these elements by itself can satisfy the
``manifest'' standard;
An understanding specifying that only the most
serious and dangerous forms of the illegal use of force
constitute aggression, and that determinations of
aggression require considering all the relevant
circumstances of each case, including the gravity of
the acts and their consequences; and
Two understandings specifying that the amendments
address the crime of aggression only for the purpose of
the Rome Statute, and that they shall not be
interpreted as creating the right or obligation for
states to exercise domestic jurisdiction over alleged
acts of aggression by other states.
Conditions for the Exercise of Jurisdiction Over
Aggression--The Conference adopted two separate procedures for
the ICC to exercise jurisdiction over aggression. Under the
first, the Court could exercise jurisdiction in cases
specifically referred to the ICC by the U.N. Security Council.
Under the second, the Court could exercise jurisdiction when
requested by a state in which aggression is alleged to have
occurred, or when the ICC Prosecutor decides on his own
initiative to pursue a case. In the latter two cases, before an
investigation may commence, the ICC Prosecutor must consult the
U.N. Security Council and may only proceed if the Council
either determines that the case involves a situation in which a
state has committed aggression or fails to make any
determination on this question. Where the Council makes no
determination, the Prosecutor must receive authorization from a
Pre-Trial Chamber of ICC Judges before he may commence an
investigation. Where the Prosecutor proceeds with an
investigation in the absence of an affirmative Security Council
determination that aggression has occurred, the Council may
pass a resolution suspending the investigation for 1 year, and
may renew such a suspension for subsequent periods.
Consent Requirement--The decision adopted by the Conference
allows states parties to the ICC to decline to accept the ICC's
jurisdiction over aggression in cases that have not been
referred by the U.N. Security Council. Similarly, the decision
also specifies that the ICC shall not exercise jurisdiction in
respect of alleged aggression committed by the nationals or on
the territories of states that are not parties to the ICC,
except where referred by the U.N. Security Council. All states
would be subject to the ICC's aggression jurisdiction in cases
referred by the Security Council.
Procedure for Adopting Amendments and Entry into Force--The
decision adopted by the Conference provides for the relevant
amendments to the Rome Statute to be adopted under Article
121(5) of the Rome Statute, meaning that the amendments will
apply only to those states parties to the Rome Statute that
approve them and not to those that decline to ratify. In
addition, the amendments establish two additional requirements
before they may enter into force. First, they will apply only
to acts of aggression committed one year after 30 states have
ratified them. Second, the ICC won't exercise jurisdiction over
aggression until a decision is taken by the ICC parties, no
earlier than January 1, 2017, to bring the ICC's aggression
regime into effect.
Analysis of Outcome
The Kampala Conference's outcome on aggression has
implications for both the United States and the ICC. These are
discussed below.
Implications for the United States
1. Exemption for Non-States Parties--The most significant
aspect of the outcome for the United States is its elimination
of any risk that U.S. officials will be subject to prosecution
for aggression by the ICC absent U.S. consent. The decision of
the Assembly of States Parties exempts from key aspects of the
ICC's aggression jurisdiction actions committed by the
nationals or on the territories of countries, including the
United States, that are not parties to the ICC. Such nonparties
could only be prosecuted by the ICC for aggression in cases
referred by the U.N. Security Council; they could not be
prosecuted solely at the request of another country or by the
ICC Prosecutor on his own initiative. Because the United States
is a permanent member of the U.N. Security Council and has a
veto over its decisions, the Council could not refer an
aggression case involving U.S. officials to the ICC over the
objection of the United States.
With respect to other crimes in the ICC's jurisdiction--
genocide, war crimes, and crimes against humanity--the Rome
Statute purports to give the ICC authority to prosecute
nationals of countries that are not parties to the ICC without
approval of the Security Council. As a nonparty, the United
States has strenuously objected to this claim, and it has been
a source of significant friction between the United States and
the ICC. The ICC's decision not to repeat its claim of
jurisdiction over nationals of nonparties when designing its
aggression regime avoids a reigniting of this contentious
issue.
2. Potential Impact on Coalition Activities--Because many
U.S. allies, including all NATO members except Turkey, are
parties to the ICC, they would be potentially subject to the
ICC's aggression jurisdiction once it is brought into effect.
This could make some U.S. allies more hesitant to join with the
United States in uses of force without clear U.N. Security
Council approval, as was the case with the 1999 NATO military
actions in Kosovo and the 2003 military action in Iraq.
Two elements of the outcome adopted could mitigate such
risks. First, under the decision adopted, states parties to the
ICC can opt out of the ICC's aggression jurisdiction for cases
not referred by the U.N. Security Council. If U.S. allies
exercised this right, they would not incur any greater risk of
prosecution for aggression by the ICC than would the United
States. Second, understandings adopted in connection with the
definition seek to underscore that aggression constitutes only
the most serious and dangerous forms of the illegal use of
force, and applies only when the character, gravity, and scale
of the illegal use of force is manifest. These understandings
arguably narrow the circumstances in which the ICC might bring
an aggression case, and may reduce the likelihood that
coalition military activities would be considered aggression,
particularly when undertaken to address threats to civilian
populations or to regional or international peace and security.
3. Potential Adverse Development in Law Relating to Use of
Force--The definition of the crime of aggression adopted by the
Conference establishes vague standards that would govern
important questions relating to the use of military force by
states subject to the ICC's aggression regime. As noted by the
U.S. delegation in Kampala, the definition adopted deviates
from existing customary international law in a number of
respects, and may serve inappropriately to discourage lawful
uses of force. Interpretive understandings adopted in
connection with the definition serve to mitigate some of its
deficiencies, but the definition remains an unsound basis for
addressing these issues. Were the definition to influence the
future development of international law outside the context of
the ICC, future U.S. leaders could face increased criticism in
connection with some decisions regarding the use of force,
including claims that their decisions amount to criminal
conduct.
4. Potential Impact on the U.N. Security Council--The
regime adopted by the Conference, if made operational and
subscribed to by a large number of states, would provide the
ICC with authority to investigate and prosecute cases of
aggression without the affirmative approval of the Security
Council. In particular cases, the ICC's pursuit of an
aggression case against a head of state or other senior
government official could complicate the Security Council's
efforts to address an ongoing threat to peace and security.
Accordingly, there is some potential that the proposed
aggression regime could reduce the effectiveness of the
Council's mechanisms for addressing situations that may be of
concern to the United States.
5. Additional time to work for improvements--Because the
aggression regime will not go into effect for at least seven
years, the United States will have opportunities to further
address concerns not resolved by the outcome. It could seek
greater clarity in the definition of aggression, either through
changes to the definition or the elements of crimes
accompanying it, or through further understandings. It will
also have the opportunity to consult with allies and to develop
plans to mitigate risks an ICC aggression regime might pose to
the ability to plan and carry out coalition military
operations.
Implications for the ICC
1. Potential Politicization--The crime of aggression has a
significant political character to it, involving judgments
about the legitimacy of decisions by state leaders to use force
in situations affecting their security interests. This
subjective political aspect of the crime is compounded by the
vagueness of aspects of the definition of aggression. The
outcome, if brought into effect, will place the ICC Prosecutor
at the center of such political questions by giving him the
mandate to investigate and prosecute aggression on his own
initiative or at the request of a state. There is a risk that
the Prosecutor will be drawn into disputes between states, and
that the Prosecutor's decisions to pursue--or not pursue--
particular cases will be seen as taking sides in such disputes.
Such perceptions could undermine the perceived objectivity and
legitimacy of the ICC as a judicial institution.
2. Potential Overstretch--The ICC is currently struggling
to carry out its current mandate of pursuing cases of genocide,
war crimes, and crimes against humanity. Eight years after the
Rome Statute entered into force, the ICC has gained custody of
fewer than half of the 15 individuals against whom it has
brought public charges for the core crimes of genocide, war
crimes, and crimes against humanity, and it has yet to complete
its first trial. Though the ICC will have at least 7 years to
further build its capacities before an aggression regime could
take effect, there nonetheless remains the risk that adding
aggression to the Court's mandate will divert resources from
core tasks and make the ICC less effective as an institution.
Further Observations on the Negotiation Process
In addition to these issues specific to the outcome at
Kampala, several other developments at the Conference may be of
interest to the Foreign Relations Committee and to the Senate
more generally:
1. Widespread Dissatisfaction with the U.N. Security
Council--Much of the discussion at the conference focused on
whether the ICC Prosecutor should be given the authority to
initiate aggression investigations and prosecutions
independently from the U.N. Security Council. Discussion on
this issue in both formal and informal settings suggested
widespread dissatisfaction with the Security Council,
particularly among delegations from developing countries. These
delegations appeared to perceive the Council as an
unrepresentative body that does not regularly act in the
interests of the international community as a whole. For some
delegations, pursuing outcomes that appeared to challenge the
Security Council's primacy in addressing aggression appeared to
be an independent objective in the negotiations, separate from
the goal of pursuing decisions that would strengthen the ICC or
international justice. Should such challenges to the Security
Council's role and authority become more widespread and arise
in other contexts, the Council's effectiveness as an
institution could be diminished.
2. Disparate Views Among NATO Members--While a potential
ICC aggression regime could impact NATO military operations,
NATO delegations at the conference were not unified in their
substantive views or in their approach to the negotiations.
NATO members also differed in their views on the importance of
giving the ICC jurisdiction over aggression at all, with some
being vigorous supporters and others skeptical at best. Some
NATO delegations were among the chief proponents of an ICC role
for aggression independent of the U.N. Security Council, while
others felt strongly that the ICC should act on aggression only
when asked by the Security Council. It did not appear from the
negotiations that NATO members, as a group, had a common
understanding about the potential implications of various
proposals on their operations. Because of the relationship of
the crime of aggression to decisions to use force that are
often taken collectively, better NATO coordination on these
issues in the future would be prudent.
3. Effectiveness of U.S. Participation--U.S. participation
at the conference was well-received, had a significant impact
on the outcome and served to protect important U.S. interests.
While there has been significant past friction between the
United States and the ICC, and while the Obama administration
has made clear that it does not support the United States
becoming a party to the ICC, ICC parties nonetheless are
welcoming of increased U.S. engagement with the ICC. Absent
U.S. participation and engagement before and during the Kampala
Conference, it is unlikely that the conference would have
specifically exempted non-ICC parties from key portions of the
proposed aggression regime. It is also unlikely that the
conference would have adopted understandings to address
ambiguities in aspects of the definition of aggression. While
there were limits to the lengths ICC parties were willing to go
to address U.S. concerns and interests--there was no
willingness, for example, to consider revising the definition
of aggression itself--ICC parties did accommodate United States
concerns in important respects.
4. ICC Priorities--The Kampala Conference was the first
high-level meeting of the ICC Assembly of States Parties since
the Rome Statute was adopted in 1998. It is notable that the
parties were concerned primarily with expanding the ICC's
jurisdiction to cover an additional crime rather than with
considering ways of improving its ability to address
effectively the crimes currently in the Court's mandate. The
Conference gave only passing consideration to important
practical obstacles currently faced by the ICC, including
securing cooperation from states with ICC orders, gaining
custody of persons charged with crimes, protecting victims and
witnesses, facilitating evidence sharing and other legal
assistance from states, and improving the efficiency of trial
proceedings. The choice by the ICC parties to focus on
aggression rather than on developing solutions to these
challenges suggests that the parties were more concerned with
the symbol of adopting an aggression regime than with the
substance of building an effective institution. Absent greater
focus on addressing these operational difficulties, the ICC may
continue to struggle in carrying out its basic judicial
functions.
Annex--ICC Review Conference Decision on Aggression