International Governance

Who's Afraid of Aggression Prosecutions?

By David Bosco
Friday, January 8, 2016, 1:15 PM

Earlier this week, former State Department legal adviser John Bellinger highlighted the increasingly vocal U.S. concerns about the International Criminal Court (ICC) acquiring jurisdiction over the crime of aggression. Because twenty-six of the requisite thirty countries have ratified the amendments agreed to at the 2010 Kampala review conference, the prospect of the court acquiring jurisdiction is becoming real.

The United States has several concerns, but it appears that the most pressing is the possibility that traditional U.S. allies will balk at future joint military operations out of worry about their legal basis. One can easily imagine, for example, a United Kingdom legal adviser cautioning a future prime minister against participating in a Kosovo-type operation that lacks a UN Security Council mandate. Increasing friction between the West and Russia and China makes a Kosovo scenario quite plausible; Security Council authorizations for the West could be awfully hard to come by in the future.

A couple of points are worth expanding on regarding U.S. misgivings. First, it appears that the United States is by far the most concerned country. There is little evidence that other states—and even other P5 members—are expending much diplomatic effort on this issue. Differing risk assessments might help explain the divergence. Many U.S. allies appear willing to accept a certain degree of risk regarding ICC action that the United States considers unacceptable. In the debates at the Rome Conference, for example, U.S. allies like France ultimately placed confidence in ICC internal mechanisms such as judicial review of prosecution actions that the United States saw as wholly inadequate. But U.S. consternation about aggression also reflects the simple reality that it remains the state most likely to launch overseas military operations and that it is quite willing to do so without the UN's imprimatur. That matters little in terms of direct U.S. legal exposure given that the United States is not an ICC member and that aggression prosecutions cannot be brought against nonmember states. But the United States has a group of traditional allies that are ICC members and that may ultimately ratify the amendments. International legality, and UN approval in particular, matters to public opinion in many states to a degree that it does not in the United States. The U.S. fear that these countries will become more skittish about joint operations in a world where aggression can be prosecuted seems plausible.  

Second, it is notable that the U.S. interpretation of what happened at the 2010 Kampala review conference has become increasingly dark. In the immediate aftermath of the negotiations, U.S. diplomats and lawyers were mostly sanguine. While noting some concerns, they pointed out that the amendments ensured that U.S. officials could not be prosecuted and that even ICC members would have the right to "opt out" of the aggression provisions. Indeed, Obama administration legal adviser Harold Koh presented U.S. engagement at Kampala as an important step toward a more productive U.S. relationship with the court:

So to paraphrase Churchill, this is not the end, it was not the beginning of the end, but it did feel like the end of the beginning of the U.S’s 12-year relationship with this court. After 12 years, I think we have reset the default on the U.S. relationship with the court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill. As one delegate put it to me, the U.S. was once again seen, with respect to the ICC, as part of the solution and not the problem. The outcome in Kampala demonstrates again principled engagement can protect and advance our interests, it can help the states parties to find better solutions, and make for a better court, better protection of our interests, and a better relationship going forward between the U.S. and the ICC.

Early in its tenure, the Obama administration clearly felt that improving relations with the ICC was important, not least because the issue had become an important point of tension with many allies (and, likely, as a means of breaking with Bush administration policies). It's not surprising that the administration was inclined to present the Kampala outcome in the most positive light. But today's environment is quite different. The ICC has largely faded as either a domestic political issue or as a salient irritant between the U.S. and its allies, and the administration is more willing to highlight its concerns about the Kampala outcome.

Finally, there is the question of what the U.S. diplomatic strategy is going forward. The recent article by Koh and State Department lawyer Todd Buchwald and the speech by Undersecretary of State Sarah Sewall were murky on this point. Both leaned heavily on the possibility of clarifications by ICC members, either in the ASP or through ratification statements. (For a survey of ways in which states might narrow the application of the aggression amendments, see this article by Leslie Esbrook). But it's likely that the administration is mulling more definitive means of preventing activation of the aggression amendments. Preventing the thirtieth ratification of the amendments would require a major diplomatic push that is unlikely to succeed. An alternative ratification strategy might focus more narrowly on discouraging traditional U.S. allies from ratifying. The United Kingdom, France, the Netherlands, Denmark, Australia, and Japan, have not yet ratified and may decide not to, particularly if the United States elevates the issue diplomatically. But this strategy carries risks. Many of these states will face domestic political pressure to ratify, and U.S. interference could easily backfire.

The most fruitful strategy might be preventing the required activation vote in the ICC's Assembly of States Parties (ASP). That vote requires two-thirds support, which is not a given. Somewhat ironically, African states—the largest regional bloc in the ASP—could rescue the United States from its aggression dilemma. By my count, only one African state (Botswana) has yet ratified the aggression amendments. And given the fraught relations with the court, African governments may be reluctant to bestow additional jurisdiction on an institution they regard with suspicion. The United States has had little patience for many African complaints about the ICC, but those doubts may now be quite convenient for Washington.