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Comment on the Aggression Question: “What should be the policy and approach of the Office of the Prosecutor in conducting investigations and prosecutions with regard to the crime of aggression?”

I. Introduction

In 2010, at the review conference in Kampala, the state parties to the Rome Statute of the International Criminal Court proposed seven amendments. These proposed amendments are the first steps to enable the Court to exercise jurisdiction over the crime of aggression. We have been asked: “How should the Office of the Prosecutor (OTP) approach prosecution of the crime of aggression if it is fully adopted as an amendment to the Rome Statute?” This comment argues that the OTP should consider the concerns presented by the United States (US), even if they were politically or selfishly motivated.1 In doing so, the OTP should be very hesitant in taking opportunities to prosecute the crime of aggression.

II. US Concerns Surrounding the Kampala Amendment

The US has two key concerns with the proposed changes to the Rome Statute: 1) that the jurisdiction is too broad, and 2) that the definition of the crime of aggression is unclear and overly expansive.

A. Jurisdiction is Too Broad

In negotiations, the US argued that International Criminal Court (ICC) should not have jurisdiction over the crime of aggression unless the United Nations Security Council (UNSC) first acts to determine that a state act of aggression has, in fact, occurred. The US argument is anchored in the language of the UN Charter, which gives the UNSC the exclusive responsibility to determine whether a state has committed “aggression.”2 The US points out that, unlike the crimes of atrocity, to prosecute an individual for the crime of aggression, the determination must first be made that the state committed aggression. Under the Charter of the United Nations, the UNSC is has the sole power to declare whether a state has committed aggression. The US, however, is aware that its views in this regard are shared only by a few of the member states. As an alternate means of narrowing jurisdiction, the US proposes that the ICC should have jurisdiction for the prosecution of aggression only if both the victim and the aggressor states had consented to the jurisdiction.3

B. The Definition is Unclear and Over-Expansive

The Kampala amendments propose a two-part definition for the crime of aggression: First there is a definition for the state act of aggression. Second, there is a definition of the individual crime of aggression. This is how they are related to one another: The state’s act of aggression is the act, the “planning, preparation, initiation or execution” of which a “person in a positon…to direct the political or military action of a State,” must have engaged in to be guilty of the individual crime of aggression.4

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1. State Aggression

The US argues that this definition of a state act of state aggression expands the traditional definition. The definition of state aggression in the Kampala Amendment draws heavily from the language in the annex to the General Assembly Resolution 3314 (XXIX) of December 1974 (Resolution 3314). However, the US argues that Resolution 3314 contains clear limitations on what state acts count as acts of aggression—limits that are not included in the Kampala Amendment.5 In the view of the United States, Resolution 3314 requires review of a number of additional factors before illegal use of armed force can be deemed an “act of aggression.”6 These additional factors would mean that not all illegal uses of armed force would constitute an act of aggression. The language of Resolution 3314 demanded consideration of the gravity of the illegal use of force, the intent of the use of force, and other relevant circumstances in deciding whether or not an illegal use of force constituted an act of aggression.7 The definition for the state act of aggression in the Kampala Amendment does not have any of these additional required considerations.8 The United States sees this as an expansion of the definition of what constitutes an act of aggression by a state.

2. Individual Aggression

The crime of aggression for which an individual would be criminally liable, as set forward in proposed Article 8 bis of the Kampala amendment, would mean:

[T]he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or 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.9

This definition raises an array of questions. First, individual liability for involvement with acts of aggression—rather than wars of aggression—substantially lowers the threshold for liability. A war of aggression is something akin to Nazi Germany’s instigation of World War II, while an act of aggression (as we have seen above) can be a much lesser state action.10 This would allow an individual to prosecuted for his or her involvement in a much less significant state act. The US is concerned that this expansive definition is a departure from customary international law.11

Second, the language of the proposed amendment in regard to the “gravity and scale” of the state act of aggression required to establish individual liability is unclear. It appears that the test for whether an act is of sufficient gravity or scale is whether it is a “manifest” violation of the Charter of the United Nations. This does not add much clarity. Standard definitions of “manifest” simply suggest something that is plain or obvious.12 There persists a lack of clarity. How does one determine what state acts are plain or obvious violations of the Charter of the United Nations? The ambiguity surrounding this language is another point of concern for the US.13

C. United States’ Political Concerns

Having active duty military personnel in over 150 countries, the leaders of the US are uniquely exposed to liability under the crime of aggression.14 The US fears that what they see as expansive and vague language of the Kampala Amendment will leave it and its citizens even more vulnerable to allegations of aggression. It fears that politically motivated prosecutions or investigations could threaten either US citizens or the legitimate foreign policy those citizens may desire to implement.15 Generally these concerns seem to be centered around the domestic interests of the United States.

III. US Concerns for Global Impact

The US government has publicly expressed several concerns (beyond the possible political concerns) with what it sees may result from the active use of the crime of aggression by the ICC.16 These concerns, as expressed by negotiators, academics, and government officials, focus on the damage that the implementation of the crime of aggression could cause to global security and the stability of the ICC.

A. Chilling Effect on Multilateral Military Action

The US is concerned that the amendment establishing the crime of aggression could stall the willingness of states to engage in cooperative, multilateral, military actions. If the legal basis of military aggression could be investigated or prosecuted by the ICC, states which might fall under the ICC’s jurisdiction will be more hesitant to engage in said action.17 Presumably, this sort of deterrence is one of the goals of the Kampala amendments. But, what if the contestable military action had a worthwhile goal—for example, intervening to stop the commission of atrocities? The US is concerned that the breadth and vagueness of the definitions in the Kampala amendments may inhibit the formation of future military alliances to accomplish positive goals—like, for example, the military interventions in former Yugoslavia. Many already see the exercise of military force in the protection of humanity as a not only allowable, but as the responsibility of those states that are able to do so.18

B. Harder to Resolve Ongoing Conflicts

Additionally, the US argues that ICC activism in prosecuting crimes of aggression would hamper the ability of the international community to resolve ongoing conflicts. While amnesties for atrocities are illegitimate, it could be detrimental to conflict resolution to adopt a similar attitude towards the crime of aggression. In the past, it was possible to negotiate a more or less peaceful exit of leaders like Chile’s Pinochet or the Philippine’s Marcos. They left their countries to what they expected would be safe and prosperous exile in another country. If that option does not exist, discredited leaders may be forced to fight to the bitter end, because their only other option is criminal prosecution. Already, some think that the ICC’s threat of arrest, conviction, and incarceration for crimes of atrocity will cause criminals to persist in their crimes against humanity and/or war crimes.19 In June of 2011, the Pre-Trial Chamber of the ICC issued warrants against Muammar Gaddafi on charges of murder and persecution as crimes against humanity. The war in Libya dragged on for two more months, finally ending when Gaddafi fled Libya in late August. Did the decision of the Court have an effect on Gaddafi’s decision making? Did it cause him to flee sooner, or did the threat of prosecution further entrench him in his position, serving to prolong the war? Some theorize that the ICC’s threat of prosecution serves to prolong the conflicts that lead to atrocities because their perpetrators are hesitant to give up their positons of comparative power and safety in exchange for a prison cell in The Hague.20

In its concerns, the US applies this same rationale to the crime of aggression. It argues, without disputing the need to prosecute crimes of atrocity, that the crime of aggression is of fundamentally different character. If the ICC pursued prosecution of the crime of aggression as actively as it does the prosecution of crimes of atrocity, the US argues that perpetrators will feel “cornered,” be afraid to stop fighting and forced to continue be their aggression to avoid being hauled before the ICC on charges of crimes of aggression. This will needlessly drag out ongoing conflicts.

C. The ICC Will be Less Effective at its Core Mission

The third US concern is that broadening the ICC’s jurisdiction will dilute its effectiveness. In the view of the US, the ICC’s core mission is to deter and punish genocide, crimes against humanity, and war crimes. Broadening its jurisdiction to include ill-defined crimes of aggression will make it more difficult for the ICC to accomplish its core functions. In making this argument, the US reaffirms its support of the ICC, and the ICC investigations and prosecutions currently underway.21 However, the US argues, the ICC has yet to establish a record of effectiveness when it comes to its basic functions, such as apprehending defendants, protecting witnesses, and prosecuting cases already underway. Adding a new controversial crime, with deep political implications, could overburden the ICC and limit its effectiveness across the board.22

IV. Why Should the Office of The Prosecutor Care About US Objections?

This comment discusses how the OTP should approach its prosecution of the crime of aggression. We have examined several of the concerns held specifically by the US. Some, if not all, seem to be motivated by US self-interest. Why should the OTP care about the concerns of the US, which is not even a member state of the Rome Statute?

A. To Curry Political Favor?

The US is not a member state to the Rome Statute, so it is not required to contribute to the ICC. Furthermore, the US is prohibited, by US law, from giving direct financial contribution or specified other assistance to the ICC.23 However, the US has indirectly helped the ICC by financing rewards for the perpetrators of atrocities and using its military to train African militaries opposing the perpetrators of atrocities.24 Additionally, during the Obama administration, the US began to increase its engagement with the ICC.25 Some might argue that, to avoid a loss of assistance from the US and in an attempt to maintain its engagement with the ICC, the OTP should consider the political interests of the US.

However, any help that the US has provided the ICC has been relatively small. Additionally, any policies of engagement between the US the ICC are unlikely to grow further under the Trump administration. Already, President Trump has threatened to cease all engagement with the ICC.26 Therefore any political opportunity cost to the ICC of displeasing the US would be insignificant.

B. On the Basis of Legitimacy

The US goal to minimize the scope and effect of the crime of aggression as set forward in the Kampala Amendment can be viewed as self-interested and politically motivated. Its expressed concerns for harm to global security and the stability of the ICC might be seen as rationales for a self-serving and unpopular political positon. They are, nonetheless, legitimate concerns. The OTP should take them into consideration when determining how to prosecute the crime of aggression.

Whatever its motivations might be, the US’s complaints about the language of the Kampala amendments have merit. The definition of crime of aggression in the Kampala Amendment does have significant gaps and ambiguities. This can result in the crime of aggression losing legitimacy. It is important for the legitimacy of a rule that it is both clearly understood by those upon whom it will operate, and consistently applied. A broad and vague definition of crimes of aggressions may allow greater freedom of action for the OTP. However, that greater freedom comes at the cost of legitimacy. Without clarity in definition and consistency in enforcement, the OTP is open to accusations of arbitrariness, bias, or political motivation. Vagueness of definition transfers reliance on the law to reliance on discretionary decisions made by the OTP. Ultimately, this will call into question the legitimacy of the OTP, and the ICC as a whole.27

V. Conclusion

The OTP should carefully consider the concerns of the US (and states like it) even if they are not member states and their engagement in the court is minimal. The concerns of these states might be motivated by self-interest, but they may still be legitimate. Additionally, the OTP should adopt a cautious policy towards the prosecution of the crime of aggression with the goal of maintaining the legitimacy of the ICC and preventing the potential global issues raised by the concerns of the United States. The OTP could do this by deliberately restraining itself in some way. One option would be for it to rely exclusively on approval the UNSC in order to initiate prosecution for the crime of aggression. By removing the decision from the ICC to the UNSC, the OTP would avoid the questioning of its own legitimacy, and it would likely ensure that the prosecution of the crime of aggression was an uncommon occurrence, relieving concerns for global impact.

Another option is for the OTP to constrain itself in some manner. This would require it to set forward some system of rules in a clear manner for consistent application. If this were done in such a way that the rules were clearly understood and they were consistently applied, it would mitigate the threat against the ICC’s legitimacy. If the rules were deliberately narrow and limited the possibility of prosecution, then it could address concerns regarding the global impact of active prosecution of the crime of aggression.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online; see also Beth Van Schaack, ASIL Cables: The ICC Crime of Aggression and the Changing International Security Landscape, ASIL Blog, Apr. 16, 2015, available online. ↩

  2. 2.

    Koh & Buchwald, supra note 1; see also Remarks by D. Stephen Mathias, in The Definition of Aggression and the ICC , 96 Proceedings of the Annual Meeting, ASIL 181, 182 (2002), paywall.

    (Koh & Buchwald cite remarks by Mathias). ↩

  3. 3.

    Id. ↩

  4. 4.

    See Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20/Add.1 (Feb. 20, 2009) [hereinafter Special Working Group], available online. ↩

  5. 5.

    See Koh & Buchwald, supra note 1; see also Definition of Aggression, G.A. Res. 3314, A/Res/29/3314, Dec. 14, 1974, available online. ↩

  6. 6.

    See Koh & Buchwald, supra note 1. ↩

  7. 7.

    See Koh & Buchwald, supra note 1.

    (Koh & Buchwald cite the Definition of Aggression, supra note 5). ↩

  8. 8.

    Special Working Group, supra note 3. ↩

  9. 9.

    Id. ↩

  10. 10.

    See Koh & Buchwald, supra note 1; see also Proposal Submitted by Germany: The Crime of Aggression: A Further Informal Discussion Paper, PCNICC/2000/WGCA/DP.4, at 5 ¶¶ 20–21 (Nov. 13, 2000) [hereinafter Germany Proposal], available online.

    (Koh & Buchwald cite Germany Proposal). ↩

  11. 11.

    Koh & Buchwald, supra note 1. ↩

  12. 12.

    Definition of Manifest, Merriam-Webster, available online (last visited Dec. 13, 2017). ↩

  13. 13.

    Koh & Buchwald, supra note 1. ↩

  14. 14.

    U.S. Military Personnel by Country, CNN, available online (last visited Dec. 13, 2017). ↩

  15. 15.

    See Ryan J. Vogel, Challenges for the United States with the Rome Statute’s “Crime of Aggression”, 1 UVU J. Nat’l Sec. 7 (Apr. 18, 2017), available online. ↩

  16. 16.

    See Van Schaack, supra note 1. ↩

  17. 17.

    Id.; see also Remarks by Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Annual Meeting, ASIL (Apr. 9, 2015), available online.

    (Van Schaack references presentation by Sewall). ↩

  18. 18.

    See Aidan Hehir, The Responsibility to Protect and International Law, in Critical Perspectives on the Responsibility To Protect: Interrogating Theory and Practice, at ch. 7 (Philip Cunliffe ed., 2011). ↩

  19. 19.

    Van Schaack, supra note 1; and see remark on Sewall, supra note 17. ↩

  20. 20.

    Tomer Broude, The Court Should Avoid All Considerations of Deterrence, Contributing to Crime Prevention by Buttressing a Durable, Consistent, Credible, and Legitimate Normative Environment in Which Serious Crimes are not Tolerated, ICC Forum (Oct. 6, 2011), available online. ↩

  21. 21.

    Van Schaack, supra note 1, and see remark on Sewall, supra note 17. ↩

  22. 22.

    Id. ↩

  23. 23.

    American Servicemember’s Protection Act of 2002, Title II of Pub. L. No. 107–206, 116 Stat. 820 (Aug. 2, 2002), available online (as amended). ↩

  24. 24.

    Marlise Simons, U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned, N.Y. Times, Apr. 2, 2013, available online. ↩

  25. 25.

    See Koh & Buchwald, supra note 1. ↩

  26. 26.

    Alissa de Carbonnel, ICC Calls on Supporters to Rally if Trump Withdraws Backing, Reuters, Jan. 26, 2017, available online. ↩

  27. 27.

    See Sean D. Murphy, Aggression, Legitimacy and the International Criminal Court, 20 EJIL 1147 (Nov. 1, 2009), available online. ↩

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