I have spent this week at the Assembly of States Parties for the International Criminal Court (ICC) in New York.* The purpose of this meeting was to give countries that are members of the court, as well as interested observers, an opportunity to prepare for an upcoming high-level meeting when they will review the progress the court has made thus far and prepare it for its next phase. The major point of contention is the so-called crime of aggression.
As background, it is important to keep in mind that the United States is not a member of the ICC. The Bush administration was extremely hostile to the court, thinking that it would target American soldiers and generally impinge on U.S. sovereignty. The second concern is certainly justified. The countries that are members of the court – including all of our European allies, Japan, Australia, and most of South America and Africa – either believe that this is a small price to pay for peace and justice (generally the former), or gain more power through participation than the little they have on their own (the latter). Countries that view their freedom to act as a boost to their power, including Russia, China, Israel, and Iran as well as the United States, remain on the sidelines.
The Obama administration has been more friendly to the court, but this is not saying much. Thus, the mere fact that the administration sent a delegation to participate in this meeting was considered progress. Progress on substance is secondary, and slow. The major positive statement from the United States at the meeting was a pledge to cooperate with the court. The pledge was carefully couched in language noting that even non-members can cooperate (i.e. the United States may not join).
The absence of the United States is painful for the court. This is not just because the participation of major players boosts the court’s credibility, but because the United States has the power to help bring about positive outcomes (and, if it so chooses, the opposite as well). And, truth be told, there are some people who would like to bring the United States into the fold in order to target it. Thus we come to the crime of aggression.
The idea is this: There is currently widespread support for adding a new crime to those covered by the ICC, namely that it would be a crime for a state to perpetrate aggression against another state. Since the United States is one of the minority of countries in the world that has engaged in any activity that might be termed such aggression, it is unsurprisingly opposed to the addition. But, as it has not ratified the convention, it does not have a vote.
So this week the U.S. delegation concentrated on two tactics: a targeted statement explaining its position, and pressure on its member-friends to take its interests into account. The statement said that the crime of aggression could politicize the court, leading it to take on cases that are more about world politics than peace and justice. The crime of aggression, they said, is different from the other crimes the court handles, such as war crimes. And at this time of ICC review, members should consider what would strengthen the court, while a new crime of aggression might instead place new burdens.
Incidentally, the arguments made by the countries opposed to the U.S. stance dovetail perfectly with those used by the superpower. The United States advocates allowing the UN Security Council to approve any possible investigation of a crime of aggression, which is widely viewed as exactly the kind of politicization (given the United States’s veto) that the United States claims it abhors. Most delegations in their statements said the crime of aggression is specifically not different from other crimes. And they believe it would strengthen the court, a consideration to which they also attach utmost importance.
There were several thinly veiled stabs at the United States during the delegation statements. Venezuela led the charge that approval of cases by an outside body (such as the Security Council) would impinge on the court’s independence, ignoring its own assaults on the national judiciary. Cuba (a non-member) mentioned that aggression could be economic as well as military. Many states also referred to the fact that there has been an open consultation process on aggression to date, implying that the United States could have participated and yet it did not. This, of course, was because the Bush administration wanted nothing at all to do with the court.
Based on the overwhelming support expressed for adding a crime of aggression, it appears likely that some amendment will pass at the June meeting. Depending on how the amendment is phrased, this could lead the United States to pull back again. It is generally believed that there is no hope of the United States ratifying the convention at least until a potential second Obama administration. Perhaps this week’s vote on health care has more to say about that than the Assembly of States Parties.
* My participation in the Assembly of States Parties was under my other hat, as a board member of the Council for American Students in International Negotiations.
