The Undefined Crime of Aggression: The U.S. and The International Criminal Court

by ADAM RAEZLER June 4, 2010
“It is the intent of the United States to return to engagement with the International Criminal Court.”
– Stephen Rapp – U.S. Ambassador at large for War Crimes Issues
Despite the precedent of two previous presidential administrations and the will of Congress, the Obama Administration is ignoring the desires of the American people as his Administration is pledging an unprecedented level of cooperation between the U.S. and the International Criminal Court, ICC. The ICC exercises a supranational jurisdiction and the court’s viewpoint always prevails, even over the objection of the States Parties. From 31 May – 12 June the Assembly of States Parties will gather in Kampala Uganda for the courts’ first review conference. While in Kampala delegates will take stock of the courts achievements and they will consider various amendments to the Rome Statute, which established the ICC.
The most controversial amendment is the proposed crime of aggression. Due to the absence of checks and balances within the Rome Statute, the Office of the Prosecutor could easily launch a politicized investigation against the U.S. on the basis that the U.S. has committed the crime of aggression. A broad definition of aggression, which is being considered, combined with the courts jurisdiction over all states, regardless as to if they are States Parties to the Rome Statute, would present a dire threat to American sovereignty and national security. American sovereignty and exceptionalism are facing a critical threat from the ICC, its proposed crime of aggression coupled with the courts ongoing investigation in NATO forces actions in Afghanistan, the U.S. must continue to resist this supranational institution.
On one side of the debate are those who believe that the Constitution of the United States is the supreme law of the land and that the judicial power of the U.S. is vested in our national courts and that authority cannot be divested. On the other side of the debate are the transnationalists who advocate the belief that the U.S. should cede our political, legal, economic and military sovereignty to an inherently anti American international machine. These transnationalists strictly adhere to the belief that these international institutions, such as the ICC, should take precedence over national sovereignty. President Obama’s Administration, lead by Harold Koh, Stephen Rapp and Hillary Clinton, has declared their intentions to lead America down the path of transnationalism and abandon the ideal of American exceptionalism. This is evident through their recent comments and efforts to integrate the U.S. into a friendly arrangement with the ICC.
In March 2010 Stephen Rapp, the U.S. Ambassador at large for War Crimes Issues announced that, “the U.S. is prepared to listen and to work with the ICC.”[i] Even America’s Secretary of State, Hillary Clinton, went so far as to state that, “it is a great regret that the U.S. has not yet joined the ICC.” [ii] Through these statements, the American people are able to see that the Obama Administration is shifting U.S. policy on global justice by laying the groundwork for a cooperative relationship between the U.S. and the ICC. This move by the Administration places American sovereignty in peril. By opening the door to the transnationalists of the ICC the President has shown that he will not defend American sovereignty and our Constitutional principles on the rule of law. The Administrations’ grandest gesture to the court has been their decision to attend the upcoming review conference in Kampala, Uganda. The primary objective in Kampala will be, to pick up where the States Parties left off in Rome in 1998, to define the crime of aggression.
When the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court convened in Rome during the summer of 1998 they granted the ICC the ability to prosecute individuals that they believe have committed war crimes, genocide, crimes against humanity and aggression. During the conference the delegates were unable to reach a consensus on how to define the crime of aggression so in an effort to not allow this mater to hinder the adoption of the Rome Statute they choose to table the task of defining the crime of aggression until the courts first review conference. [iii] Since the U.S. initiated Operation Enduring Freedom and Operation Iraqi Freedom the courts admirers have been salivating over the opportunity to define the crime of aggression. The courts supporters believe that by defining aggression they will be able to delve a devastating blow to the U.S. in our ability to use military force around the world. While the most hard core proponents of the court believe that it is in the best interest of international justice to define the crime of aggression and allow the court to begin prosecuting perpetrators of this crime, the U.S. and our allies must be on alert. For should the court gain the ability to exercise jurisdiction over the crime of aggression America’s foreign policy will be forced to undergo a radical makeover.
If the ICC attains the capacity to prosecute individuals for the crime of aggression every decision by the U.S. to use force, every civilian death as a result from U.S. force and any alleged mistreatment of a detainee could prompt an investigation by the ICC’s prosecutor into the U.S. nationals the court deems responsible. This scenario should be putting U.S. allies on the alert that America will be much less likely to come to their aid in a time of need for fear of our nationals facing politically charged prosecutions from the ICC. Since the court currently does not have the ability to exercise jurisdiction over the crime of aggression the U.S. must also be concerned that there is absolutely no precedent on how the court would proceed with this newly acquired power. Should the crime of aggression be defined and incorporated in the list of crimes that the ICC can claim authority to prosecute over it would pose a direct threat to the U.S’ ability to defend herself and our allies. [iv] While in Kampala the American delegation must urge the States Parties to reject the proposed definition and remove the crime of aggression from the Rome Statute. It is because of the deep concern over politicized prosecutions that the U.S., China, Russia, India and Israel have refused to join the ICC.
Should the crime of aggression be defined and adopted in Kampala its effect would go well beyond the court’s current 110 member states. For the U.S., as a non -member of the Rome Statute, there would be implications any time the use of force was considered within the territory of a State Party. Consider that over the past two decades the U.S has used force in the territory of several current ICC States Parties such as Afghanistan, Bosnia and Serbia. While the U.S. is certain that it did not commit aggression while exercising force in these nations that will not be enough to stop the ICC from launching an investigation in America’s actions. The Rome Statute would provide the court with the power to seek legal action against U.S. nationals, including the President of the United States, which it believes has committed or authorized the use of aggressive force in the territory of a States Party.
In September 2009 the prosecutor for the ICC announced that he was investigating alleged war crimes and crimes against humanity, including torture, “massive attacks”, and collateral damage, by NATO forces in Afghanistan, that may result in the prosecution of American nationals. [v] Even though the U.S. is not a party to the Rome Statute, Afghanistan is and their membership allows individuals within Afghanistan to file a compliant against NATO and American forces operating within Afghan territory. Despite that the U.S. and Afghanistan have entered into a Status of Forces Agreement, SOFA, the ICC can still push forward with their investigation into American and NATO forces actions. The current investigation into NATO forces, in Afghanistan, highlights the incredible threat that American sovereignty faces from the ICC and why defining of the crime of aggression will only hinder American foreign policy. 
Should a definition be adopted in Kampala for the crime of aggression the U.S. would most certainly face a firestorm of complaints and investigations by the ICC; which could result in an attempt to prosecute American nationals. Addendum #1 [vi] displays the proposed crime of aggression that the Assembly of States Parties will consider at the review conference. The proposed definition is so broad and vague that if adopted it would impede the U.S’ ability to protect itself and maintain global peace and security. The proposed definition could be interpreted to label most U.S. military action in the past two decades as a crime. This would include military action sought by the Clinton Administration, which includes the use of force in the former Yugoslavia, Kosovo, Bosnia and Serbia. Additionally under the proposed definition, Operation Iraqi Freedom would most certainly be seen as a crime of aggression, as the U.S. did not receive the United Nations Security Council’s approval for the use of force. Former U.N. Secretary General Koffi Annan argued that Operation Iraqi Freedom was “illegal” because “it was not in conformity with the U.N. Charter.” [vii] Even the current Legal Advisor to the Department of State, Harold Koh, has argued that, “notwithstanding congressional authorization, the Iraq war “violate[s] international law” because the United States did not receive “explicit United Nations authorization” for the war. [viii] It is through these comments that we are able to see the true intentions of the transnationalist’s agenda.
Defining the crime of aggression so broadly would jeopardize America’s ability to use force, when needed, especially if we are unable to receive Security Council authorization. Also should the proposed definition be adopted our allies would be much more apprehensive about joining U.S. lead military coalitions, out of fear that they will also face prosecution by the ICC. While in Kampala, the U.S. delegation must do all they can to protect American sovereignty by urging the States Parties to reject the proposed crime of aggression. The U.S. must emphasize to our allies that should this definition be ratified our foreign policy and military umbrella will be forever impacted.

FamilySecurityMatters.orgContributing Editor Adam Raezler holds a Masters from Norwich University

[iii] vague new crime of aggression&st=Search
Addendum 1
Article 8 bis Crime of aggression
1.             For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2.             For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
a.       The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
b.       Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
c.       The blockade of the ports or coasts of a State by the armed forces of another State;
d.       An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
e.       The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
f.        The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
g.          The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

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