Going into the Review Conference of the International Criminal Court (ICC) in Kampala, Uganda, it was clear that the highest priority on the American agenda was to defeat an amendment that would grant the ICC jurisdiction over the crime of aggression. At the very least, the U.S. wanted to convince the delegates (America is not a party to the Rome Statute, the treaty that established the ICC, and thus did not have a vote at the conference) to grant the court jurisdiction over aggression only in cases where the U.N. Security Council has determined that an act of aggression has been committed.
In the end, the U.S. failed in its main objectives. But the U.S. was able to address many of its concerns during conference negotiations. While the U.S. played a minimal role in this, Article 124 was maintained, which is in the U.S. interest. The Belgian amendment was adopted, creating an unfortunate precedent for expanding the list of weapons whose use are considered war crimes under the Rome Statute, but the risks to the U.S. were largely negated. On the vital question of aggression, the success of the U.S. and similarly concerned states in placing checks on the court’s ability to exercise jurisdiction over aggression in significant ways should be recognized as a hard-fought, albeit less than ideal, achievement.
But the fact remains that the Obama administration’s vaunted ‘engagement’ strategy was only able to check the ICC’s move towards defining ‘aggression,’ not stop it entirely. And it sets the U.S. up for another battle in 2017, when the ICC’s advocates will make another push to activate the ICC’s jurisdiction over ‘aggression’. The ICC was created to be insulated and independent to protect its rulings from political influence because its charge to investigate and try individuals for heinous crimes even, in some cases, if committed by individuals whose governments are not party to the ICC was deemed too important for such interference. But this independence also tramples on a longstanding principle of international law that sovereign nations can only be bound by treaties that they have ratified or otherwise adopted freely. It also means that the Court lacks the accountability and checks necessary for the U.S. to be confident that the Court itself will be unbiased and resist politicization in its choice of cases and rulings. As a result, the Administration and Congress must remain be concerned about the adoption of crime of aggression and wary of how the ICC might exercise it jurisdiction over that crime in the future.
