Bargaining Practices: Negotiating the Kampala Compromise for the International Criminal Court

I INTRODUCTION The common view, at least since Machiavelli, is that insincerity is the norm in high politics, where sophisticated diplomats engage with each other over issues of ultimate security. This view has become a key element in various international-relations theories, including the promising "international practices" framework, which defines international practices as "competent performances." (1) Yet the idea that the diplomatic practices surrounding the multiyear negotiations over the crime of aggression were merely competent performances does not capture a key experience of many of the participants: a sincere commitment to their own beliefs. In the terminology of qualitative theorists Glaser and Strauss, the concept of performances does not optimally "fit" or "work." (2) My contention is that sincerity, which I define as communicative truthfulness about an internal state such as a feeling, value, or belief, was an essential ingredient in the successful consensus outcome realized at the ICC Review Conference in 2010. At this gathering, the International Criminal Court's (ICC) Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). (3) These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017. In this article, I explain the bargaining practices of the diplomats that gave rise to this historic development in international law. I argue that the international-practices framework, as currently conceived, does not adequately capture the role sincerity played in the negotiations. Sincerity was an international practice, but not a performance. It follows that the international-practices framework should be adjusted to accommodate the decisive role of sincerity, a special nonperformative international practice, in the face-to-face interactions of international politics and diplomacy. The ICC and the crime of aggression are legacies of the Nuremberg Trials. The Kampala Compromise is the culmination of approximately seventy years of on-and-off multilateral negotiations in which states attempted to create an international criminal court based on the International Military Tribunal at Nuremberg, where German leaders were tried for war crimes, crimes against humanity, and the crime against peace after World War II. (4) The evolution of the crime against peace, later renamed the crime of aggression, was obstructed by the conflict between the Soviet Union and the United States. (5) The development of the Court and crime became live issues again in the 1990s with the end of the Cold War. (6) In 1998, the Rome Statute was created and the crime of aggression, the most contentious topic at the diplomatic conference establishing the Statute, was included alongside genocide, crimes against humanity, and war crimes. (7) The controversy surrounding the definition of the crime of aggression at the 1998 diplomatic conference in Rome (the "Rome Conference") resulted in the crime being included in the Statute without a definition. Instead, the conference assigned a Preparatory Commission (Prepcomm) (8) to draft proposals to be considered at a future Review Conference, to be convened no earlier than seven years after the entry into force of the Rome Statute. (9) The negotiations over the crime of aggression gained unanticipated traction in 2002 when the Prepcomm delegated the issue to a Special Working Group on the Crime of Aggression (SWGCA). This group was composed of ICC States Parties, interested nonparty states, (10) a number of representatives of nongovernmental organizations (NGOs), and a handful of independent experts. (11) It met formally at UN Headquarters and in The Hague, and informally at Princeton University to comb through the details. …