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.

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.