The Disappointing — If Predictable — CFR Report on the ICC Review Conference

by Kevin Jon Heller

Julian beat me to the punch regarding the new Council on Foreign Relations report, From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference.  Not surprisingly, I don’t share Julian’s enthusiasm for it.  On the contrary, I think it’s extremely disappointing, little more than a reiteration of the same tired talking points that the US has been pushing for the past decade.

The report is relatively short and worth reading in its entirety.  If you don’t have enough time, though, it can be reduced to the following three propositions:

[1] The US should have the right to unilaterally use military force whenever and wherever it wants.

[2] ICC jurisdiction over the crime of aggression would limit that right, so the Review Conference negotiations must be undermined.

[3] The US should avoid being seen as openly undermining the Review Conference negotiations, because that will make undermining them more difficult.

Some specific thoughts on the report:

After World War II, the United States led Allied efforts to prosecute top German and Japanese officials for atrocity crimes and crimes against the peace (aggression), overcoming British and Soviet arguments for summary execution of the enemy leadership.

This is literally true — but it is important to remember that Henry Morgenthau, the Treasury Secretary, urged Roosevelt to support the summary-execution option.  It’s a minor point, but the statement above has an obvious narrative purpose: namely, to paint the US as the good guy in international criminal justice, one whose objections to the ICC and the crime of aggression the international community ignores at its peril.  The reality, of course, is far messier.

The General Assembly resolution contains a nonexhaustive list of acts that may constitute aggression, while leaving open the possibility that additional acts may constitute aggression as determined by the Security Council. The resolution represented a political compromise, and many international law experts believe this definition is too vague for the purposes of imposing individual criminal liability.

This is a bold claim — and one for which the report doesn’t bother to provide even a single citation.  Who are these “many” unnamed international-law experts?  They certainly aren’t the literally dozens of experts who have participated in the Special Working Group’s negotiations.  My guess is that the author is thinking of one scholar in particular: Michael Glennon, who — not surprisingly — is on the report’s advisory board.  The same Michael Glennon whose argument that the SWG’s proposed definition of aggression is unacceptably vague did not mention, much less address, the proposed elements of the crime.  And the same Michael Glennon who believes that customary international law does not criminalize aggression, a claim that indicates just how extreme (read: wrong) his views really are.

Two issues divided the Working Group. The first was whether the state whose nationals are alleged to have committed the crime must consent to the ICC’s jurisdiction over aggression, or whether the consent of the victim state is sufficient. States in favor of requiring the consent of the alleged aggressor state argue that it is mandated by international law.

This is both incorrect and misleading.  It is incorrect because the SWG is not even considering such a requirement regarding Security Council referrals; consent is only an issue regarding state referrals and proprio motu investigations.  The US would presumably be fine with that asymmetry, because it would mean that the US could veto any Security Council attempt to refer its own aggression to the ICC while permitting the Court to investigate aggressive acts by other states without their consent.  And it is misleading because the most recent SWG report notes only that “some” states favor requiring consent for state referrals and proprio motu investigations; it says nothing about how many.  (And lest anyone accuse me of being uncharitable to the report, it later claims that states are “evenly divided” on the consent issue, which is plainly untrue.)

Also note that the report does not identify which states, or how many, believe that consent is “mandated by international law.”  Again, that’s not surprising.  What the report fails to mention — why, we can only speculate — is that many, if not most, of the states that support requiring consent do so only because of Article 121(5) of Statute, which provides, with regard to amendments, that “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”  That procedural rationale for requiring consent is very different than the claim that international law itself “mandates” consent.

Nor is the latter claim compelling — which almost certainly explains why the report does not provide a single citation for it.  The consent argument cannot be aggression-specific, because there is absolutely no evidence that the Allies believed that Germany had to consent to the IMT’s jurisdiction over crimes against peace.  (Japan did consent to the IMTFE’s similar jurisdiction, but that does not mean consent is “mandated” by international law.)   Instead, the claim seems to be based on the US’s insistence that the Rome Statute cannot bind non-party States, a position that has been been debunked by scholars time and again (see, for example, here or here) and that very, very few states other than the US accept.

The United Kingdom and France have argued that given the Security Council’s primary role in regulating the use of force, including the determination that acts of aggression have occurred, it must have the last word on whether the ICC may move forward with prosecutions. Opponents of a decisive Security Council role have pointed to the risk of deadlock in the council, noting the council’s historical reluctance to label actions as aggression.

Notice what is missing in this statement?  The word “veto.”  (Indeed, the word “veto” is strangely absent from the report; it appears only once, in the Foreword, which was not written by the author.)  Opponents are not worried about “the risk of deadlock”; they are opposed to giving the P5 — which includes three states that are not even members of the ICC — absolute control over the ICC’s ability to prosecute aggression, which would be the result of requiring the Security Council to determine whether an act of aggression occurred.  Such a requirement would be fatal to the legitimacy of the Court, effectively providing nationals of P5 states with immunity from prosecution for aggression.

Given these divisions, the review conference is faced with three options… 3. Send the entire aggression issue to a new working group for further consideration. The United States is the only country to have openly advocated for this approach.

What, the US wants to start over after nearly 10 years of negotiations?  If I didn’t know better, I would be tempted to suggest that this is not a good-faith effort to reach consensus, but merely an attempt to scuttle the aggression negotiations entirely…

The proposed definition reflects this uncertain state of the law by merely listing acts that might constitute aggression without defining when those acts are unlawful. The definition does not address how claims of self-defense or humanitarian necessity affect the categorization of the use of force as aggression.

This is another profoundly misleading statement.  The proposed definition does, of course, permit states to use armed force in self-defense — it specifically limits “acts of aggression” to acts that constitute “a manifest violation of the Charter of the United Nations,” and Article 51 of the Charter specifically provides that states have the right to defend themselves, individually or collectively, against armed attack.  The US’s problem, therefore, is not with the definition of aggression.  What it objects to is that, if the ICC had the ability to prosecute aggression without the Security Council’s approval, the US would no longer be the sole arbiter of whether its use of force against another state (at least one that was a member of the ICC or accepted its jurisdiction) qualified as “self-defense.”

The same is true of the “humanitarian necessity” argument.  There is literally no chance that the ICC would ever prosecute a humanitarian intervention that was sanctioned by the Security Council, but it is certainly possible that it would prosecute a unilateral act of aggression that a state self-servingly claimed was humanitarian.  (See, e.g., Iraq.)  The US objection is thus not to the definition of aggression per se, but to the fact that it would only be immune from prosecution if it obtained Security Council approval for a “humanitarian” act of force.  Which would, of course, be a very good thing — unless you believe that the US would never use armed force inappropriately and thus should be allowed to use armed force wherever and whenever it wants to.  (See, e.g., Iraq.)

It is similarly unclear whether a preventive or preemptive strike against a proliferator of weapons of mass destruction (WMD)—for example, a U.S. or Israeli strike against suspected Iranian nuclear weapon program sites—would constitute criminal aggression.

Let’s try a thought experiment.  Imagine that the US did not have a permanent veto in the Security Council.  Do you think it would rather have the Council or the ICC determine whether it had committed an act of aggression?  My bet is that it would go with the legal body in a heartbeat — which indicates, again, that the problem is not the definition of aggression, but the fact that the definition would not give the US absolute control over the ICC’s docket.

And remember, only one of the options presently under consideration by the SWG would allow the ICC to prosecute an act of aggression proprio motu.  Other options would condition the ICC’s jurisdiction on the General Assembly or the ICJ determining that an act of aggression had occurred.  Why don’t those options satisfy the US?  Easy — no veto.

If aggression existed as a crime in 2003, for example, Iraq could have consented to the jurisdiction of the ICC after the U.S. invasion, potentially exposing U.S. leaders to investigation and prosecution for the decision to use force. In such a scenario, the ICC prosecutor could have investigated U.S. or coalition partners, asking them for detailed explanations of their legal rationale as well as for classified intelligence information regarding Iraq’s alleged weapons programs. The prosecutor might have then second-guessed the conclusion by the United States and other governments that their use of force was justified under existing UN Security Council resolutions.

One can only hope so!  This is a feature of the crime of aggression, not a bug.  There was no legal rationale for invading Iraq, and the Bush administration simply invented evidence of WMDs and ignored any “classified intelligence information” that undermined its demagogic claims that the failure to invade Iraq would lead to mushroom clouds.  So wouldn’t it be a good thing if the US knew, before it invaded the next country, that its ability to avoid the ICC’s dock would depend on actually having a legal and factual basis for the invasion?

Even if the definition were clear, allowing ICC aggression prosecutions to proceed without Security Council authorization could undermine Security Council efforts—including ongoing diplomacy—to restore peace and stability in conflicts, perhaps by sending conflicting signals to the parties regarding the merits of the underlying dispute.

Such a noble sentiment.  But it rings a bit hollow coming on behalf of a state that owed the UN more than $2 billion in peacekeeping dues until last year and that was more than happy to blackmail the Security Council into guaranteeing American soldiers immunity from the ICC by threatening to veto (and actually vetoing) peacekeeping operations until it did.

These concerns suggest that the Security Council, which is entrusted by the UN Charter with responsibility for maintaining international peace and security, should oversee determinations regarding aggression.

This is incredibly misleading.  Even if the ICC had jursdiction over aggression, the Security Council would still have the ability to prevent the Court from ever exercising that jurisdiction.  As I have noted before, Article 16 of the Rome Statute permits the Security Council to defer any investigation or prosecution for one year, renewable forever.  Aggression would be no different.  The problem for the US is that Article 16 requires the Security Council to pass a deferral resolution — which means that any member of P5 could permit an aggression prosecution to go forward by using its veto.  So the US’s problem with ICC jurisdiction is not that the Security Council would not be able to oversee “determinations regarding aggression,” but that the US would not be able to oversee those determinations through its veto.  That’s a critical difference.

Although non-P5 states are less concerned about preserving Security Council authority, some recognize from a pragmatic standpoint the importance of support among P5 members for the court’s agenda, given the practical difficulties in apprehending suspects and collecting evidence without the support of the most powerful states.

Hmm.  I’m guessing that most non-P5 states would happily sacrifice support for apprehending suspects and collecting evidence if that meant P5 would not have complete control over the ICC’s docket.  When was the last time Russia or China cooperated with the Court?  Has the US really been all that helpful?  And, of course, the UK and France would still be obligated to cooperate with the Court because they have ratified the Rome Statute.

The goodwill created by the Obama administration’s decision to participate at the review conference could be quickly dissipated by an overly assertive American strategy, especially if critics successfully characterize the United States as obstructionist.

Seriously, could the report be more patronizing?  Are the other states really so in awe of the US that the mere presence of an American official at the Review Conference — “look, there’s Hillary!” — will lead them to forget that the US will never accept an ICC that it cannot completely control?

Although U.S. negotiators could suggest specific changes to the text that would improve its viability as a criminal provision, this strategy is unlikely to succeed and could be counterproductive…. Offering alternative language may also create false expectations regarding U.S. support for aggression with an improved definition.

Noted without comment.

Rome Statute parties are evenly divided on the question of whether the consent of the alleged aggressor state is required to activate aggression jurisdiction.

False, as noted above.

[T]he United States must be clear that it will not support an outcome that allows the prosecutor to proceed with aggression prosecutions absent the consent of both parties involved and approval of the Security Council.

At least the report is honest here about what it wants — an ICC that, for all practical purposes, will never be able to prosecute a single act of aggression.  It is profoundly sad to see what Justice Jackson’s legacy has become.

The United States should avoid obstructing the decisions of state parties on items of the review conference agenda where the United States lacks a national interest.

The cynicism is staggering.  But at least the report is willing to openly admit that US policy should be to obstruct the ICC with regard to items in which the US does have a “national interest.”

Given the need for the United States to be active on the issue of aggression, and the opportunity to participate constructively in the stocktaking sessions, the delegation should remain neutral, or even voice support, on the remaining agenda items if they do not implicate significant U.S. interests.

Ditto.

The United States is currently engaged in a noninternational armed conflict with al-Qaeda.

Strictly speaking, this comment concerns proposals to expand the Rome Statute’s prohibitions on the use of certain weapons to include non-international armed conflicts, not aggression.  But it is worth flagging, because it is indicative of the Alice in Wonderland world of international law in which the report operates.  How many states believe that the US is engaged in a global non-international armed conflict with al-Qaeda — other than the US?  More than you can count on one hand?

Julian believes that the CFR report is “persuasive and compelling.”  It is — as long as you accept its central premise, which is that the US should have the right to use military force unilaterally whenever and wherever it wants to.  If you don’t trust the US to always do the right thing, and if you don’t believe that Americans should be immune from prosecution for planning, preparing, initiating, and executing aggressive acts, you might want to be a bit more skeptical.

http://opiniojuris.org/2010/04/26/the-cfr-report-on-the-icc-review-conference/

2 Responses

  1. Excellent post Kevin!

  2. Spot on Kevin. On the patronizing tone of the CFR report that you note, isn’t it naive of the report’s author(s) to think that the ICC members and NGOs have any illusions going into Kampala about the self-serving objectives of the U.S. participation? I’d bet that they don’t and that they have their own game plan aimed at getting from the  U.S. whatever commitments to cooperate with the court they can (e.g., by helping to arrest some of the ICC fugitives in Africa) without allowing the U.S. to scuttle the aggression project. It will be a fascinating “dance” to watch.

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