A (Partially) Dissenting View on the US “Observing” the ICC Review Conference

When I critique the US’s refusal to join the ICC in my international criminal law class, I make sure to emphasize not only that the US has traditionally played a very positive role in ICL — from Nuremberg to the SCSL — but also that the Rome Statute would be considerably worse but for the input of the American representatives at PrepCom and the Rome Conference.  Like many others, therefore, I am encouraged by the US’s recent decision to observe the Review Conference in 2010.  I don’t expect the US to join the ICC in the near future (if ever).  But increased US engagement with the Court can have significant benefits for both parties.

That said, it is important to emphasize that the US’s new “Observer” status is not without its drawbacks.  The US has not abandoned its basic objections to the ICC — the independent prosecutor, automatic jurisdiction over crimes committed on the territory of a State Party, no formal Security Council control over the ICC’s docket, etc. — despite the fact that they are non-starters for the Assembly of States Parties (ASP). Insofar as it renews its objections at the Review Conference, therefore, US participation threatens to delay, and perhaps actually impede, negotiations.

Indeed, the US is already up to its old tricks.  Consider what Stephen Rapp, the US Ambassador at Large for War Crimes Issues, had to say about the crime of aggression in his recent address to the ASP — his only substantive comment:

Having been absent from previous rounds of these meetings, much of what we will do here is listen and learn. Our presence at this meeting, and the contacts that our delegates will seek with as many of you as possible, reflects our interest in gaining a better understanding of the issues being considered here and the workings of the Court.

That said, I would be remiss not to share with you my country’s concerns about an issue pending before this body to which we attach particular importance: the definition of the crime of aggression, which is to be addressed at the Review Conference in Kampala next year. The United States has well-known views on the crime of aggression, which reflect the specific role and responsibilities entrusted to the Security Council by the UN Charter in responding to aggression or its threat, as well as concerns about the way the draft definition itself has been framed. Our view has been and remains that, should the Rome Statute be amended to include a defined crime of aggression, jurisdiction should follow a Security Council determination that aggression has occurred.

Although we respect the hard work that has been done in this area by the Assembly of States Parties, we also share the concern that many of you have expressed about the need to address this issue, above all, with extreme care, and the Court itself has an interest in not being drawn into a political thicket that could threaten its perceived impartiality.

The irony of this statement is difficult to miss: the US’s idea of a “non-political” definition of the crime of aggression is one in which the US has complete control over the ICC’s ability to prosecute the crime by virtue of its permanent veto.  That is an unacceptable position, one that echoes the US’s original demand that the ICC not have jurisdiction over any situation that the Security Council had on its agenda.  And it is particularly unacceptable given that, as Rapp admits, the US has not participated in the ASP’s seven years of negotiations over the crime of aggression.  It is still not clear what the jurisdictional trigger of the crime will look like — options range from the ICC being able to initiate a prosecution of its own accord to requiring the ICJ to determine that an act of aggression has occurred — but it is clear that it will not look like what the US wants.  Any US involvement in the negotiations, therefore, can only be counterproductive.

I’m delighted that the US has taken Observer status.  But we should not kid ourselves — if the US does more than observe, its participation may well threaten the work of the Review Conference.