In a move that international lawyers describe as "a giant leap," members of the International Criminal Court agreed to add aggression to the court's short list of prosecutable crimes.
The United States opposed the resolution, but as a non-member of the eight-year old court, had no ability to block the adoption.
Still, it was notable that the United States even showed up for the debate.
State Department Legal Advisor Harold Koh and Ambassador-at-Large for War Crimes Issues Stephen Rapp led a sizeable U.S. delegation to a two week meeting in Kampala, Uganda. It ended early in the morning on Saturday with the consensus adoption of the definition of aggression and mechanisms for triggering an investigation.
The resolution will not go into effect until at least 2017, and the court has no jurisdiction to bring aggression chares against nationals from non-ICC member countries, which include the U.S., Russia and China. Even member countries have a way to opt-out.
The ICC is intended as a court of last resort to punish crimes that shock the conscience – genocide, crimes against humanity, war crimes, and now aggression – when there is no ability to do so at the national level.
Under the administration of President George W. Bush, the United States had virtually no involvement with the ICC. In 2000, President Bill Clinton signed the Rome statute that created the court, but never brought the treaty to the Senate for a vote. In 2002, the Bush Administration sent a document “unsigning” Clinton’s acceptance. One hundred and eleven nations are ICC members.
The U.S. has been concerned that the court could attempt to prosecute American military members deployed overseas, even those on peacekeeping missions to stop war crimes.
To date, the ICC has brought only a handful of cases over incidents in the Central African Republic, Dafur, the Democratic Republic of Congo, Northern Uganda and Kenya, and has yet to complete a trial.
The ICC delegates defined aggression as a “crime committed by a political or military leader which, by its character, gravity and scale constituted a manifest violation of the Charter.”
The United Nations Security Council will have the main responsibility for determining if an act of aggression has occurred.
To Rapp, who previously served as Chief of Prosecutions at the International Criminal Tribunal for Rwanda and as U.S. Attorney for the Northern District of Iowa, the definition of aggression is “exceptionally vague.”
It’s “not a war of aggression, like we prosecuted at Nuremberg, but a crime of aggression that could make any sort of border conflict into a case that would cause the indictment of chiefs of state,” he said in a video blog from Kampala posted on the International Justice Central website. “We want to make sure the institution grows responsibility and does not become politically motivated.”
In a transcript of a June 2 press briefing from the meeting, Koh compared the court to a “wobbly bicycle that’s just starting to get its legs and roll forward, and the question is whether to add a crime of aggression at this moment might put too much weight on it and transform the nature of its mandate.”
But David Scheffer, who was U.S. Ambassador at Large for War Crimes Issues from 1997 to 2001, wrote in a blog from Kampala for the American Society of International Law that “The historical significance of these developments cannot be understated.”
He continued, “This is truly one giant leap. Perhaps, just perhaps, the action in Kampala will finally lock in a credible means to holding powerful individuals, those who intentionally launch massive acts of aggression, accountable for their actions and to instilling, over the years, greater deterrence to the aggressive instincts of insecure leaders.”