Prosecuting Aggression

On Monday, members of the International Criminal Court gather in Kampala, Uganda, to consider whether to amend the Court’s statute to allow it to exercise jurisdiction over the crime of “aggression.” Previous articles on these pages have argued that the crime is too vague and should be rejected (Michael J. Glennen, April 6), and that criminal responsibility for the illegal use of armed force would make international law more credible (Noah Weisbord, May 4).

By Richard Goldstone, distinguished visitor from the judiciary at the Georgetown University Law Center and former prosecutor at the U.N. Criminal Tribunals for the former Yugoslavia and Rwanda.

Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.

By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.

But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.

One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.

Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.

Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.

Moreover, as a young institution, the Court still has much work to do in effectively investigating and prosecuting the crimes over which it already exercises jurisdiction. Cooperation from member states and the relationship between peace and justice are just two vital issues that require sustained attention at Kampala and beyond.

Grappling with aggression now also threatens to open rifts among members of the Court. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated. Attempting to force a decision absent consensus would vitiate one of the strongest assets the Court has had — the solidarity of it members in the face of efforts to undermine the project.

Kampala is not the last opportunity to amend the statute. The Court’s members should wait at least until the I.C.C. is more established institutionally and a broader consensus emerges on the relevant issues.

By David Kaye, who directs the international human rights program at the University of California, Los Angeles, School of Law.

The addition of the crime of aggression to the I.C.C.’s jurisdiction is a dangerous move. For although there are strong reasons for criminalizing aggression, the result would politicize the Court, undermine its independence, and limit the support from governments that is essential to its work.

The case for a crime of aggression is rooted in well-established international law, and an international tribunal with the power to investigate and prosecute aggression could serve as a deterrent against future resorts to force.

Sadly, however, we don’t live in a world where such an outcome is likely. More likely, decisions to investigate uses of force would be highly politicized.

I.C.C. members are now considering several options to trigger the authority to investigate: authorization by the U.N. Security Council; by the U.N. General Assembly or International Court of Justice; by a I.C.C. prosecutor after approval by a chamber of judges.

Each option is fraught with political dangers. In the Security Council, it would be impossible to avoid the claim of impunity for the five permanent members with vetoes (United States, Britain, France, Russia and China). And they would undoubtedly seek to extend their protection to their allies, or trade votes to protect their spheres of influence.

The General Assembly, a body that is already highly politicized and split along geographic and other lines, would be no better. The International Court of Justice lacks the investigative competence to review claims of illegal use of force. And placing the power to investigate claims of aggression in the hands of the I.C.C. prosecutor, already deluged with accusations of politicization, would be a disaster for the Court.

That is not to say that politics aren’t already at work. The United States is not a party to the I.C.C. Yet the Obama administration has offered to work with the prosecutor to determine where its support would be most useful. Aggression jurisdiction would undermine the support of the U.S. and other powerful countries.

Human rights groups are already calling for the Kampala conference to defer its negotiation of a crime of aggression. The Open Society Institute and 40 other organizations from around the world urged governments to postpone the discussions, while Human Rights Watch issued a report that, among other things, expressed concerns that aggression could “diminish” the role of the I.C.C. in international justice.

The governments in Kampala should take the long view and ask themselves whether this Court, at this time, is ready to sacrifice broad support and independence for moral clarity.