Brett Schaefer’s Critical (from the Right) Take on the ICC Review Conference

by Julian Ku

It is worth also considering the views of those critical of the entire ICC effort to the define aggression and bring it within the ICC Statute.  Brett Schaefer at Heritage offers this final take, which he calls the U.S. effort a qualified success due to its ability to delay implementation and to insert “understandings” into the ICC Statute.

[T]he U.S. was able to insert several “understandings” into the resolution. These understandings affirm that the crime of aggression does not limit or prejudice existing or developing rules of international law for purposes other than the statute; state that the resolution shall not be interpreted as “creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State”; emphasize that a determination of an act of aggression must weigh “all of the circumstances of each particular case” including the gravity of the acts and their consequences; and assert that the character, gravity, and scale of a crime of aggression must all be sufficient to meet the standard of a “manifest” violation of the U.N. Charter. Taken together, these understandings should help guide the court in dismissing lesser, frivolous, or politically motivated allegations of aggression and protect military missions based on self-defense, humanitarian intervention, or other legitimate purposes consistent with the U.N. Charter.

10 Responses

  1. The issue is of course to define “lesser, frivolous, or politically motivated allegations of aggression” … for some reason, I think that Mr Schaefer would define any investigation on an Iraqi-like invasion by the US as a combination of these factors!

  2. The way I see it, the U.S. delegation lost 2 out of 3 (since article 124 was maintained), which in the general context, is quite a victory. It was too much to hope for a positive stand by the U.S. towards the Review Conference and the ICC in general, even during the “global-happy Obama administration”, to quote some words from another article by Brett Schafer. So, I think this is one more reason not to have such a negative or pessimist view of the Review Conference and its results, wouldn’t you agree?

  3. I second the previous two comments — and would point out that nothing in the Rome Statue recognizes “understandings,” much less ones offered by non-party States.  I think the chance that the US’s understandings will “guide” the Court is about zero…

  4. Thanks for linking to my blog, Julian.

    The main victory for the U.S. was succeeding in having the resolution on aggression specifically bar non-party states from ICC jurisdiction unless referred by the UNSC.

    Other provisions adopted in the resolution also constrain the ICC’s jurisdiction over aggression, including the declaration provision. The NRO blog goes into more detail.
    As for the understandings, they were introduced by the U.S., but were adopted as part of the resolution in Annex III by consensus. They are as much a part of the crime of aggression as the elements of crimes in Annex II. No one would argue that the elements of crimes would have “zero” chance of guiding the Court. 
    I’m not sure what you are referring to when you classify the decision to maintain Article 124 a loss for the U.S. I see maintaining Article 124 as a win for U.S. interests even though the U.S. delegation was not really involved one way or the other.
    The Belgian amendment is also non-binding on non-ICC party states per the resolution, which states ” in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute.” This language makes it largely irrelevant from the U.S. perspective.  
    All in all, I think the U.S. delegation did a credible job of protecting U.S. interests at the conference.




  5. “All in all, I think the U.S. delegation did a credible job of protecting U.S. interests at the conference” – if one considers US interests as being the interests of impunity, I agree. Why in the world would the US consider prosecuting these crimes according to the complementarity principle as contrary to its interests?! This is something I will never understand. In the medium term (say, 30 years), the US stands to lose the most from not strengthening international law throughout the whole world.

  6. Despite what Mr. Schaefer says, there is nothing in the Rome Statute that permits the Court to rely on “understandings” to interpret provisions in the Statute.  That is very different than the Elements, which the Court is entitled to take into account pursuant to Article 9.

  7. Kevin,

    It’s true that the Statute itself doesn’t mention recourse to any understandings, but the Statute is a treaty, and it is a general rule of treaty interpretation that recourse MUST be had to any agreement between the parties as to the treaty’s interpretation, either as part of the treaty’s ‘context’, or subsequent to its conclusion – see Art. 31(2) and (3) VCLT. 

    As far as I can see, the Court could theoretically depart from the understandings that were adopted by all states parties, but only if they directly contradicted the text of the Statute or perhaps its object and purpose. There is very little chance of that happening. For all practical purposes, the understandings adopted at Kampala are as binding as the text of the Statute itself.

  8. Marko,

    Any such “side” agreement, however, has to itself be valid.  The Rome Statute is a self-enclosed system with specific provisions governing amendment; nothing in the Statute provides for the adoption of “understandings,” and nothing in the Rome Statute permits the Court to deviate from Article 21 (“Applicable Law”) when interpreting the Statute.  Had the Review Conference amended Article 21 to permit reference to understandings, I would have no problem with giving the understandings binding force.  But it did not.

    Moreover, how can you say that the understandings do not “directly contradict” the text of the Statute? They directly contradict Article 21, which specifies the sources of law that the Court can apply.

  9. Marko,

    If an “understanding” is as binding as the text itself, why couldn’t the Review Conference have adopted aggression via an understanding?  The definition is not inconsistent with either the text of the Rome Statute or its object and purpose.  So why bother with the amendment process, which requires States Parties to accept the amendment? 

    Conversely, why does an “understanding” not have to satisfy the same requirements as an amendment, if it is binding on the Court?  Shouldn’t it have to be accepted by the States Parties and remain inactive until 7/8 of them have accepted it, pursuant to Article 121(4)?

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