US warns against ICC adopting state aggression as crime

[JURIST] US Ambassador-at-Large for War Crimes Issues Stephen Rapp [official website] expressed concern Tuesday over the potential adoption of a state aggression law [transcript] by the International Criminal Court (ICC) [official website], claiming that it could undermine the integrity of the ICC. The statement came during a speech at the first Review Conference of the Rome Statute [official website]. Addressing the review board, Rapp stated that the proposed aggression charge, which is defined as using force that manifestly breaches the UN charter, is overly broad and could result in politicized investigations into use of force. The issue has divided delegates and non-governmental organizations, and Rapp cautions that adopting the contentious crime could undermine the credibility of the court:

What impact would moving forward in the absence of clarity and consensus - real consensus, not expedient compromise - on these fundamental questions have on the Court itself? Will States parties enhance the prospects for universality by moving to adopt this crime at a time when there is genuine disagreement on core issues, or by placing the prosecutor in a position where he must make decisions - whether to pursue aggression charges in particular cases - that organizations such as Human Rights Watch have cautioned "may well give rise to perceptions of political bias and instrumentalization - even if such perceptions are ... unfounded?" And will they enhance the prospects for consolidating the Court's role in ensuring that those who perpetrate war crimes, crimes against humanity or genocide are held to account? ... We believe that moving forward now on the crime of aggression without genuine consensus could undermine the Court.
Additionally, Rapp stated that the US government is concerned that the broad definition of aggression will create legal uncertainties is terms of state action. He held that "a fundamental principle of legality is that individuals must know whether conduct crosses the line into that which is forbidden before they act and not learn the answer in the crucible of trial." Delegates opposed to the ICC mandate are wary of its impact on the use of force, such as NATO's bombing of Kosovo in the 1990s, Tanzania's invasion of Uganda to overthrow military dictator Idi Amin, or more recently Colombia's raids in Ecuador against Marxist rebels.

On Monday, UN Secretary General Ban Ki-moon [official website] hailed [JURIST report] the dawning of an "age of accountability" during the opening day of the review session of the ICC. Ban described the first review conference, where delegates from ICC member states will consider amendments to the founding statute [texts], as a "landmark in the history of international criminal justice." Ban went on to defend the ICC against charges of selectivity in its investigations, which has been an accusation frequently leveled at the court due to the fact that most of its caseload is from Africa, causing tense relations with the governments in the region. Ban stated that "African society is cheering" because the court is on the side of the victims. Ban pointed to the support for the court among African non-governmental organizations as an indication of support for the ICC from African civil society. ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] described the change [BBC report] in the international legal system since the establishment of the court as a legal revolution, and said the the attitude in Africa was changing in favor of the court. Last week, a collection of African civil society organizations urged greater cooperation [JURIST report] between the ICC and African nations during the review conference. The group of 124 organizations called on African governments to enhance their cooperation with the court and to make greater efforts in the execution of outstanding warrants.

 

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