European Affairs

The marquee event on the agenda was to attempt to define and activate “aggression” as a prohibited act that would be subject to Court sanctions and punishment. The US was uncomfortable with the idea of a process under which its “preemptive” wars and police actions could be made subject to the Court’s jurisdiction on the motion of one of the 111 state parties. At the same time, the US has a strong interest in having an international tribunal that can address “bad” acts of aggression like Saddam Hussein’s invasion of Kuwait.

With the US acting as a non-voting observer, the conference not only “activated” the crime of aggression, but also did so in a way that safeguards US concerns.  The possibility of US soldiers or officials being hauled before the Court for the crime of aggression remains as remote as ever.  At the same time, the Court has expanded its jurisdiction over “rogue” acts of aggression.

As reported by Prof. David Scheffer, who attended the meetings, the conference defined a “crime of aggression” as when state leaders plan or execute an act of aggression that constitutes “by its character, gravity and scale” a “manifest violation of the Charter of the United Nations.”  A prohibited “act of aggression” is the use of armed force by one state against another state in a manner inconsistent with the U.N. Charter.

So where is the “get out of jail” card for the US?   For a non-state party, such as the U.S., to become subject to the Court on impermissible “aggression” , the matter must be referred to the Court by the Security Council, on which the US sits with veto power.  Acts of state parties may be referred by the Security Council, but there is a mechanism wherein the Court can act against these countries even without a referral.

In short, almost everyone went home happy.   Aggression is “activated” and a way has been found to allow the US to participate and to support as a non-party.  To the surprise of critics, the US delegation behaved itself well for the most part, resisting the temptation to lecture and otherwise act like a superpower.  It tried hard to act like the observer it was, but at the same time provided helpful support.

The US worked closely with the British and French, who fronted US concerns.   In the end, there seemed to be general consensus that it was good for the US to be involved, notwithstanding its position of not submitting to the Court’s jurisdiction, except under a Security Council referral.

And as a result, the Court has emerged stronger and possibly more relevant, even though the “aggression” jurisdiction will not become effective for several years.

Bill Marmon is Managing Editor of European Affairs