State Aggression and Judicial Passivity

WASHINGTON, DC – When the member states of the International Criminal Court gather later this month in Kampala, Uganda, for a conference to review the ICC’s work, one issue on the agenda will be whether to amend the Court’s statute to allow it to exercise jurisdiction over the crime of aggression. That issue was deferred when the ICC Statute was adopted in 1998. Based on my experience as an international prosecutor, and speaking as a strong supporter of the ICC, I believe that it would be a serious mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.

By any measure, the ICC has gotten off to a strong start in generating global support and demonstrating its potential to address the problem of official impunity for serious international crimes. But it also has encountered charges of politicization, and it is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity, and war crimes.

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The experience of the International Criminal Tribunal for the former Yugoslavia (ICTY), which also addressed genocide, crimes against humanity, and war crimes, should sound a cautionary note for ICC members as they debate whether to add the crime of aggression to their jurisdiction.

One of the greatest challenges I faced as the ICTY prosecutor was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater – perhaps impossible – if the Tribunal’s jurisdiction had included the crime of aggression.

Indeed, including aggression would have required me to investigate and potentially prosecute the decision to go to war – inherently a profoundly political decision. Prosecuting that decision would have inflamed suspicions of an anti-Serbian plot; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.

Now is not the time for the ICC to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to the ICC’s critics who claim that it is a highly politicized institution.

Moreover, as a young institution, the Court still has much work to do in effectively investigating and prosecuting the crimes over which it already exercises jurisdiction. Cooperation from member states and the relationship between peace and justice are just two vital issues that require sustained attention at Kampala and beyond.

Grappling with the crime of aggression also threatens to open rifts among members of the Court and other Court supporters. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated.

It is unrealistic to expect consensus to be reached on these issues in the days remaining before the Kampala meeting. And attempting to force a decision in the absence of consensus would vitiate one of the strongest assets the Court has had – the solidarity of its members in the face of efforts to undermine the project of an effective and independent international mechanism for justice and accountability.

The ICC review conference in Kampala will not be the last opportunity to amend the statute. The Court’s members can choose to do so at any time in the future. They should wait at least until the Court is more established institutionally and a broader consensus emerges on the relevant issues.