Assessing Kampala: The U.S. Could Have Done Worse, But Still Did Pretty Badly

I have been negligent in failing to post on two excellent assessments of the recent ICC Review Conference in Kampala and its ultimate decision on aggression.  Both assessments (one by Heritage’s Brett Schaefer and the other by George Mason’s Jeremy Rabkin) give the Obama Administration some credit for limiting the damage to U.S. interests at Kampala.  But both ultimately conclude (and I agree) that the ICC entering into the business of prosecuting aggression is bad news for U.S. interests and for the world.

Here is Schaefer:

Overall, the U.S. effort at the International Criminal Court Review Conference in Kampala was a qualified success. The outcome could have been much worse. While the conference adopted the Belgian amendment, creating a precedent for criminalizing the use of additional weapons as war crimes under the Rome Statute, the U.S. did succeed in minimizing the immediate risks to U.S. interests and nationals. The conference also passed a resolution that, if confirmed by future action by the states parties, would grant the ICC jurisdiction over the crime of aggression. Critically, the U.S. was successful in persuading the states parties to restrict the ICC’s jurisdiction over aggression in several significant ways that should help protect U.S. interests. However, the Obama Administration’s modest success in Kampala did little to address ongoing U.S. concerns about politicization of the court and illegitimate claims of ICC jurisdiction over U.S. service members and officials charged with war crimes, crimes against humanity, and genocide. The U.S. should not consider ratifying the Rome Statute until all of its serious concerns about the ICC are completely resolved.

Rabkin has a similar, but more critical take.  In his view, the entire ICC enterprise will result in no actual reduction in actions of military aggression, but simply weaken the ability of liberal democracies to resist war crimes, military aggression, and terrorist attacks.  Indeed, as he points out, the ICC continues to have no jurisdiction over non-state actors like Al Qaeda and very limited ability to punish states that support terrorist organizations.  The entire attempt to legally define and constrain aggression represents silly but dangerous wishful thinking.

What happened this summer was that the Obama administration decided it was easier not to disrupt this pleasant fantasy than to meet its responsibility to protect those who carry out the national security policies of the United States. Instead, the United States showed the world that it has rejoined the “international consensus” so rudely disrupted by the Bush administration. It will be years before we have to say we don’t actually share the premises of this latest dream of “peace through law.” And by then—we’ll have balanced the budget and gotten our debt under control, so we’ll be better able to confront this external challenge.

The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”

It will be important, in the next few years, to put the world on notice that we don’t, in fact, mean to go along with the subsequent stages of the project that the ICC represents. But we can’t now rely on the Obama administration to stand up for our sovereign rights. Time for others—especially in Congress—to start doing so before it’s too late to say, “We didn’t really mean it.”

As I have written before, there is surprisingly broad consensus in the U.S.  (among the spectrum of opinion that includes both Michael Glennon and Harold Koh), that the ICC’s crime of aggression was nothing but a disaster for the U.S. and for the ICC as well.  Although both Schaefer and Rabkin are writing from the right, I think their critiques accurately represent the U.S. political consensus.  The question for the new administration of 2017 (when aggression finally fully kicks in and when President Obama is finally out of office) is what to do about it.