The United States managed to foil the International Criminal Court’s (ICC) adoption of the crime of aggression as part of its mandate during the just-concluded review conference in Kampala, Uganda. Despite the fact that the United States is not a signatory to the Rome Statute, which established the ICC, and thus did not have a vote at the conference, U.S. negotiators cajoled a majority of the state parties to delay the definition and adoption of the crime of aggression for another seven years. Where the Bush administration used threats and tried to intimidate, the Obama team offered sweet-talk and enticements to get states to delay the amendment expanding ICC jurisdiction to include the crime of aggression. It also managed to water down the definition of aggression and to exempt U.S. personnel from prosecution. The latter was a goal of the previous administration and the reason for U.S. hostility toward the ICC.
Crowing with satisfaction, the State Department reported on June 16 that the agreement had ensured “total protection for our Armed Forces and other U.S. nationals going forward.” This indemnity was achieved by a series of amendments that exempted non-state parties from prosecution and gave the U.N. Security Council the power to determine if a crime of aggression has occurred. If the Security Council finds that aggression has not occurred, then the prosecutor would have to seek a majority vote of pre-trail judges and even then, the Security Council would still have the power to thwart the process with a binding Chapter 7 resolution disapproving the action. Even if the United States becomes a state party to the ICC at some point, it could still opt out of having U.S. citizens prosecuted for aggression.
The Carrot Approach
The success in promoting U.S. interests was achieved by offering inducements, such as “generous” support for national legal systems in state parties through information sharing and support in arresting suspects. The focus on national legal remedies for war crimes and crimes against humanity has been touted as the alternative to international justice. The International Criminal Tribunal for Rwanda — which I am currently visiting — and the International Criminal Tribunal for the Former Yugoslavia, in particular have been criticized for spending hundreds of millions of dollars with little to show for it. Critics such as President Paul Kagame of Rwanda argue that the local Gacaca courts, based on indigenous norms, are faster and more relevant to ordinary Rwandans than distant international tribunals. Both the international tribunals and the local courts, however, suffer from the malady; both tend to prosecute the “losers” and ignore crimes that may have been perpetrated by the victors. The only exception is the Special Court for Sierra Leone which prosecuted both sides of the civil war.
Another incentive offered to mitigate U.S. meddling is “cooperation,” such as information sharing and support in the location and arrest of suspects. ICC officials argued before the conference that the United States could provide critical counterintelligence support in the search for, and arrest of, indicted war criminals such as Joseph Kony, leader of the Lord’s Resistance Army. The ICC charged Kony with individual criminal responsibility on 33 counts of crimes against humanity including, murder, mutilation, rape, mass burnings, and enslavement. It issued an arrest warrant for him on July 7, 2005. The United States has also designated Kony a “specially designated terrorist” (SDT), a designation that allows the United States to block his assets and criminalize any association with the said individual or group. Other SDTs include Osama bin Laden and Hamas.
A Renewed U.S. Role
Despite its success in delaying the ICC’s jurisdiction over aggression, the United States failed in its main objective to defeat the amendment altogether. Instead, the United States tried to politicize the ICC by enhancing the role of the Security Council and therefore giving permanent members the power to subvert the process. Ironically, this is the very issue, politicization, that the United States claimed was the problem with the ICC in the first place.
This renewed engagement with the ICC suggests that the Obama administration is interested in shaping international law while remaining immune to prosecution under the very laws it helps develop. In the case of the ICC, the cover story is that the United States is concerned that its troops engaged in peacekeeping around the world may be subject to malicious prosecution.
Critics of the ICC argue that it is a toothless watchdog because it relies on member states to arrest suspects. They point to Omar al-Bashir of Sudan who continues to thumb his nose at the ICC, despite an arrest warrant issued in 2009 for war crimes and crimes against humanity in Darfur. The counter argument is that international war crimes tribunals have successfully prosecuted heads of state including former Prime Minister John Kambanda of Rwanda, and former presidents Slobodan MiloševiÄ of Serbia and Charles Taylor of Liberia.
The latter case is particularly instructive as the Special Court for Sierra Leone, which prosecuted Taylor for his role in the civil war, is a hybrid of national and international justice, bringing together both local and international prosecutors and judges. Such hybrid processes have also worked in the case of Cambodia where a U.N.-backed tribunal is trying senior members of the Khmer Rouge for violations of international humanitarian law. Locating the tribunals in the countries where the crimes were committed both enhances the capacity of national judicial systems and involves the local communities in the process. In some cases, however, powerful individuals are able to thwart efforts to establish local tribunals. In such cases, for example the recent experience in Kenya, it may be necessary to resort to international courts.
Although critics are furious at the role of the United States in shaping the agenda of the review conference, this reengagement with international institutions is a positive step. The United States can play a role in the international arena by supporting efforts to bring suspects such as Kony to justice and putting pressure on sitting presidents such as Omar al-Bashir. Meanwhile, expanding the jurisdiction of the ICC to include aggression will be revisited in 2017, giving activists and other interested parties another opportunity to advocate for the increasing role of the ICC in international law.