The ICC Review Conference: a Crucial Moment for the Crime of Aggression (part 1)

From May 31st to June 11th, the States Parties to the Rome Statute of the International Criminal Court (ICC) will gather in Kampala, Uganda, to consider amendments to the Court’s founding treaty and assess the work and impact of the Court’s work since its establishment in 2002. This conference marks an important opportunity to strengthen the Court’s jurisdiction over the most serious international crimes.

The most controversial issue will be the adoption of a provision defining the crime of aggression and setting out the conditions under which the Court would exercise jurisdiction. It is expected that the jurisdiction part will present a more serious obstacle to adoption than the actual definition.

The United States will attend the Review Conference as an observer since it has not ratified the Statute. US participation results from the improved relationship between the US and the Court since President Obama took office. The US, however, is a strong opponent of any aggression proposal without a prior UN Security Council determination that an act of aggression was committed. This would give Washington a veto over any such charges. The Obama administration fears that a broader jurisdiction of the Court will increase the possibility of politicized cases against US military and government officials.

This time, the US does not stand alone in its ICC criticism, albeit not for reasons of self-interest. Some, including the former chief prosecutor of the Yugoslavia and Rwanda Tribunals Richard Goldstone, claim that the inclusion of the crime of aggression into the ICC’s jurisdiction would politicize the Court, undermine its independence, and limit the support from governments that is essential to its work. Certain human rights group are also calling for States Parties to defer their negotiations on the crime of aggression; fearing that an aggression amendment could diminish the role of the ICC in international justice.

The big question at the Review Conference will therefore be whether the States Parties will yield under the pressure to defer the negotiations over jurisdiction, or whether they will conclude the negotiations, reinforce the jurisdiction of the Court, and thereby undermine the ICC’s improved relationship with the US.