International lawyers gathered today for a hard look at U.S. policy options following a landmark meeting of International Criminal Court members in Kampala, Uganda, in June.
After eight years on the sidelines, the United States is back in the ICC mix, with a new policy of "principled engagement" with the court, which is intended as a forum of last resort to punish crimes that shock the conscience.
The American Society of International Law commissioned eight expert papers on the direction that engagement should take, hosting the meeting today at the group’s Washington headquarters (located fittingly enough between the embassies of Greece and Kenya).
A top concern is the issue of aggression. In June, ICC members agreed to add aggression to the short list of crimes prosecuted by the court, which also include genocide, crimes against humanity and war crimes. The ICC delegates defined aggression as a "crime committed by a political or military leader which, by its character, gravity and scale, constituted a manifest violation of the Charter."
The United States is not a member of the court (neither is Russia or China), but attended the Kampala meeting as a non-state party.
In Kampala, the U.S. delegation ”arrived very focused on definitional issues” related to aggression, said David Scheffer, a professor at Northwestern University School of Law who served as Ambassador at Large for War Crimes Issues from 1997 to 2001. The problem was, the definition had “already been set in stone prior to Kampala.”
John Cerone, professor of law and director of the Center for International Law and Policy at New England School of Law in Boston, described the reaction of one delegation to U.S. efforts: “How dare a non-state party come in and try to impose its will on a definition we worked on for a decade?” he said.
Cerone recommended that further U.S. efforts to narrow the definition of aggression should only be done in good faith and to address specific problems.
Still, he said, the United States “could not have done much better” on provisions related to consent to bring charges. Members agreed the court has no jurisdiction to bring aggression charges against nationals from non-ICC member countries, and even member countries have a way to opt-out.
The United States also wanted the U.N. Security Council to have an exclusive role in deciding when to bring aggression charges. The problem, said Scheffer, is that “most governments simply despise the Security Council.”
The Security Council still has the main responsibility for determining if an act of aggression has occurred, but Scheffer noted that some details remain unclear. For example, he said, if the Security Council says yes to aggression charges, “the pathway is fairly clear for the court.” But it’s less clear what the role of the court’s judges would be if the council says no.
“The U.S. was there primarily to talk about aggression,” said David Tolbert, president of the International Center for Transitional Justice, but was “constrained greatly by the fact that the U.S. is a non-state party. If we were [members], we’d have been in a much stronger position.”