The International Criminal Court on a Wobbly Bicycle?

Earlier this week, a short resumed session of the Assembly of States Parties of the International Criminal Court took place in New York City. Its function was to make final preparations for the Review Conference, to be held in Kampala over the first two weeks of June. A report was issued, but it does not yet seem to be on the website.
I didn’t attend the meeting in New York city, but have spent the last couple of days at the Annual Meeting of the American Society of International Law, where it seems many of the players at the Assembly of States Parties decamped to once their session was over.
On Thursday night here in Washington, the Legal Adviser to the Department of States, Harold Koh, gave a major speech that included important comments on the position of the United States with regard to the agenda of the Review Conference. In a memorable metaphor, Harold described the Court as a 'wobbly bicycle'.
Then, this morning there was a panel featuring Christian Weneweser, who is the president of the Assembly of States Parties, Béatrice le Frapper, who is an aide to Prosecutor Moreno-Ocampo, Ambassador Steve Rapp, war crimes ambassador for the United States, and Bill Pace of the Coalition for the International Criminal Court.
The plan for the Review Conference is to devote the first four days to ‘stocktaking’, which what is called a ‘high level segment’ involving speeches by ministers, heads of State and the like. There seems to be some genuine effort to make the ‘stocktaking’ more than a mere exercise in public relations for the Court. Nevertheless, there is considerable resistance to any serious attempt to come to terms with the problems that have troubled the Court over its first seven or eight years of operation. The spokesperson for the Prosecutor, for example, used terms like ‘celebration’. But perhaps there should be more self-criticism and introspection, given that the Court, and the Prosecutor, have not met the targets they have themselves set in terms of holding and completing trials.
The remaining days of the Conference will address the various amendments that are proposed. The first issue – the only one that must necessarily be considered – is article 124, labeled a ‘transitional provision’. The trend seems to be to simply leave it alone. The second involves changes to the war crimes provisions dealing with prohibited weapons, so as to make them applicable to non-international armed conflict. This is not as important as it might seem, because it mainly covers rather archaic weapons, such as hollow bullets and poisoned spears, which are of little importance in modern-day armed conflict.
And then there is the big issue, aggression. My sense is that it is quite unlikely at this point that the Court will be able to prosecute the crime of aggression anytime soon. There are two clusters of issues, the definition of the crime itself and the modalities of its prosecution by the Court. The former is not so difficult, and some delegations seem to be pushing for the idea of adopting a definition and then leaving the other issue for the future. That would be putting a brave face on failure, I think. Already, in 1998, there was such a half-baked solution in the reference to aggression in article 5(1) but in such a way as to prevent prosecution of the crime. The proposal to adopt a definition and nothing more is only a more sophisticated version of the gimmick employed in 1998.
The hard part is the modalities of prosecution. This is sometimes called the ‘jurisdictional issue’ but it is really about triggering the jurisdiction of the Court. After a decade of work by the Special Working Group, a menu of proposals emerged. They can be distinguished by the varying degrees of warmth or hostility to the Security Council. Hoping to resolve this at Kampala, some enthusiasts for the crime of aggression seem willing to compromise on the most Security Council-friendly approach. This would be a big mistake. The Court’s success has been due to its ability to take its distance from the Security Council. At Rome, in 1998, many States would have been happy to make the separation even clearer, by simply omitting the provisions that became articles 13 and 16. Finally, there were compromises. But adopting provisions on aggression that are too deferential to the Security Council will tilt the Court in a direction that many States will find unpalatable.
After being largely absent from the debate for many years, the United States is returning at strength, and plans to be a big player in the negotiations at Kampala. Although Harold Koh and Steve Rapp express the positions with courtesy and in a manner that communicates their support for and commitment to the Court, what emerges from their remarks is the view of the United States that it would be desirable to put all of the aggression business on the shelf. Return to it sometime in the future, they are saying. On Thursday, Harold Koh described the Court as ‘a wobbly bicycle that is finally starting to move forward’, and asked whether the crime of aggression might be ‘frankly more weight than the bicycle can bear’.
It’s a bit of Rome redux. Twelve years ago, the United States pressured and cajoled and threatened,, on a range of issues. Did it finally get its way? Well, the United States voted against the Rome Statute, yet the text was covered with its fingerprints. Kampala may be different, because the debate is focused on a single issue. Battle lines are being drawn. After years of silence, the United States has decided to stake out its positions. Over the next two months we shall see whether it is more or less influential than it was in 1998.