Challenges for the United States with the Rome Statute's 'Crime of Aggression'

From May 31 through June 11, 2010, delegates from around the world met in Kampala to consider a new “crime of aggression” that would fall within the jurisdiction of the International Criminal Court (ICC). Proponents for giving the ICC jurisdiction over the crime of aggression have long argued that aggressive war constitutes the “supreme international crime” and have sought its inclusion as a prosecutable offense in an international judicial forum capable of holding individuals responsible for acts of unlawful aggression committed by the countries they lead. Indeed, aggression’s inclusion in the ICC’s Rome Statute is rightly regarded as a major development in international law. But many also see the Statute as a potential threat to the United States. All of the most significant concerns that have kept the United States from joining the Court thus far are present in and exacerbated by the new aggression offense. U.S. reluctance to join the ICC has been predicated on two related concerns: 1) that politically motivated prosecutions or investigations could threaten either U.S. citizens or the legitimate foreign policy those citizens may devise and implement, and 2) that the framework of the ICC effects a change in international relations that diminishes the role of the Security Council by putting coercive authority in the hands of a new entity—the ICC—chipping away at the Council’s role as the unique and exclusive lawful authorizer of coercive force. The introduction of an aggression offense brings these concerns to the fore. Aggression is the quintessential “political” offense. By its definition, it requires a political act by the government of a State. It is the kind of crime that one would think could not be determined by a single prosecutor; indeed, it is the community of nations that determines whether a given act was a lawful use of force or whether it amounts to aggression. And, as such, aggression is the ultimate offense that should implicate United Nations (UN) Security Council equities. At its very essence, aggression threatens international peace and security; permitting its adjudication without Security Council involvement is perhaps the most extreme structural alteration to the UN’s jus ad bellum regime since its inception. Now that the dust has begun to settle on the ICC’s newest offense, and States are beginning to look ahead to the 2017 Review Conference and to determine whether they will ratify the crime of aggression, it is appropriate to take a look at how the United States stands with respect to aggression under the ICC. Are U.S. equities protected? Is the new offense written in such a way as to amplify U.S. concerns or to diminish them? What additional technical concerns may arise from the new crime, and how should the United States respond to this modification to the Rome Statue? The first step is putting Kampala in context. This article begins by examining the historical background of the crime of aggression. This article then analyzes the Special Working Group’s (SWG’s) pre-Kampala draft definition, jurisdictional options, elements, resolution, and understandings; considers the negotiated compromise texts that emerged from Kampala; and then assesses the United States’ vulnerability to investigation, prosecution, and other foreign policy harm from the aggression amendments to the Rome Statute. This article concludes that although the United States may have delayed gravely detrimental outcomes from the Kampala Review Conference, serious challenges still lie ahead.