Statement at the Review Conference of the International Criminal Court

Harold Hongju Koh
Legal Adviser, U.S. Department of State 
Kampala, Uganda
June 4, 2010

Thank you, Mr. Chairman.

I am honored to present the views of the United States of America at this historic conference with respect to the proposed amendments to the Rome Statute, particularly the crime of aggression. We commend the Bureau, the Special Working Group on the Crime of Aggression, and all participating states—both parties and non-parties—as well as the many committed civil society organizations for all the hard work that has been done to bring us to this point.

As my colleague Ambassador Stephen Rapp noted earlier this week, the United States comes to this Conference in the spirit of renewed engagement, with the aims of supporting a constructive outcome that is based on consensus, that strengthens the Court as an institution, and that advances the cause of human rights and international criminal justice. We are engaged in a complex exercise of making international criminal law for the real world. To be a success, this Review Conference must promote a principled, workable system of international criminal justice that is consistent with existing international law and institutions and fair both to victims of abuse and to individuals who may eventually be prosecuted for the crime of aggression. We cannot credibly claim success if we produce an unworkable and divisive compromise that weakens the Court, diverts it from its core human rights mission, or undermines our multilateral system of peace and security.

At the midpoint of this Review Conference, we can discern two points of genuine agreement among the delegates with regard to the proposed amendments. The first is that if any amendments to the Rome Statute are adopted, they should be adopted by consensus. The second is that there are several significant issues on which no consensus solution appears to be emerging.

The first question is what is the legitimate way to adopt amendments that add crimes to the Rome Statute? This is a bedrock procedural question that affects both the amendments regarding aggression and the Belgian amendment. We have heard states from every continent urge that any amendments regarding the crime of aggression be adopted by consensus. At the same time, we have heard disagreements over whether proposed amendments should be adopted under Article 121(4), Article 121(5), or some combination thereof. Further disagreements exist about the extent to which amendments under Article 121(5) apply to states that do not accept the amendments and non-state parties; and about whether states that do not accept the amendments are obligated to cooperate with the Court in cases involving nationals of accepting states. This lack of clarity about the amendment rule applies to the Belgian amendment as well, which we believe should also be adopted by genuine consensus. Under these circumstances, we can only conclude that, at this moment, proceeding by consensus is the only procedure that enjoys consensus support.

For something as fundamental to this Court as its core crimes, a rule of amendment by consensus is both necessary and appropriate. In the history of the International Criminal Court, the definitions of all of the crimes over which the Court has jurisdiction and all of the elements of these crimes have been adopted by consensus. We should not deviate from that decision-making principle for these even more sensitive and highly-charged offenses. Proceeding by consensus is the soundest way to develop international law, and the best way to build a strong institution that can effectively improve the plight of victims. We cannot adopt amendments relating to a crime under conditions that ensure that every aggression prosecution will begin with a challenge to the legitimacy of the process by which the crime was adopted.

A second question is when should any aggression amendments enter into force and become operational? In listening to all of the statements, we have heard no consensus that it would be wise or desirable to operationalize the crime of aggression at this moment in the Court’s development. Nor have we heard any consensus that the elements of the crime, which have been little discussed, should be completed here in Kampala. For the three existing crimes—genocide, war crimes, and crimes against humanity—the elements of the crimes were not finalized until nearly four years after Rome. Even if a definition of aggression were adopted, we would need a similar period of careful deliberation regarding the elements of what is a far less well-settled offense.

A third question is what jurisdictional conditions—filters or triggers—must be satisfied before the ICC could exercise jurisdiction over the crime of aggression? Although the Princeton Process addressed this issue at length, it was unable to bridge very significant differences of views among states on these issues. The Princeton Process did show support for the proposition that investigations and prosecutions for the crime of aggression could go forward where the Security Council had determined that aggression had occurred. But apart from that, there was little agreement regarding any filters or triggers beyond the Security Council. At the Resumed Session in New York, the views of states were categorized into four “Boxes,” depending on whether states considered that there should be a requirement for a Security Council determination, and whether the consent of the involved states would be a prerequisite for exercising jurisdiction. We heard a number of states express preferences for Box 1 (Security Council filters); others for Box 3 (consent-based jurisdictional filters); and still others for Box 4 (no jurisdictional filter) solutions. Based on this striking diversity of views, we can only conclude that no consensus has emerged for a jurisdictional filter that could operationalize this crime, and that more work on this issue still needs to be done.

A fourth major question is whether, despite the considered attention that has been given to Article 8bis, genuine consensus has been reached regarding the meaning of the proposed definition of the crime of aggression? Here, we acknowledge that the Special Working Group was able to develop a definition, Article 8bis, on whose wording many nations agreed. Although we respect the considerable effort that has gone into the Princeton Process, we believe that without agreed-upon understandings, the current draft definition remains flawed. We are concerned that the apparent consensus on the wording of Article 8bis masks sharp disagreement on particular points regarding the meaning of that language that must be addressed before the amendments on the crime of aggression can enter into force.

In this regard, the two papers circulated by the Chair to help facilitate today’s meeting—the Conference Room Paper and the Chairman’s Non-paper—make a valuable contribution. They introduce the idea of addressing concerns through understandings or other documents, without the need for disturbing the language of Article 8bis itself. This is a constructive approach that we believe is worthy of further exploration and development. If the States Parties were to adopt the definition here in Kampala, we believe that understandings would be essential to minimize at least three undesirable risks.

First is the risk of criminalizing lawful uses of force. No one has ever before successfully prosecuted mere acts of aggression, as opposed to the “wars of aggression” that were prosecuted in Nuremberg and Tokyo. Many of the acts listed in Article 8bis might be elements of an illegal “war of aggression”—the crime that was actually prosecuted at Nuremberg and that is discussed in Resolution 3314—but if committed in isolation, would not necessarily qualify as the crime of aggression. The current definition in Article 8bis does not fully acknowledge, as President Obama did in his recent Nobel acceptance speech, that certain uses of force remain both lawful and necessary. If Article 8bis were to be adopted as a definition, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide—the very crimes that the Rome Statute is designed to deter—do not commit “manifest” violations of the U.N. Charter within the meaning of Article 8bis. Regardless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution. At the same time, in order for an investigation or prosecution to proceed, it must be shown that it was manifest that the action was not undertaken in self-defense, without the consent of the state in question, and without any authorization provided by the Security Council.

A second risk is that adopting Article 8bis as the definition of aggression does not truly reflect customary international law, i.e., widespread and consistent state practice followed out of a sense of legal obligation. Although supporters of the Article 8bis definition claim that it mirrors the provisions of General Assembly Resolution 3314, in fact the text departs from that resolution in significant ways. Resolution 3314 states that only the most serious and dangerous forms of illegal uses of force constitute aggression, with the determination whether an act of aggression has occurred requiring careful consideration of the circumstances of each particular case, including the purpose for which force was used. Unlike genocide, war crimes, and crimes against humanity—which plainly violated customary international law when the Rome Statute was adopted—as yet, no authoritative definition of aggression exists under customary international law. If the Article 8bis language is not adapted to bring it into conformity with customary international law, it should be made clear that the language is being adopted only for purposes of implementing the Rome Statute and is not intended as an authoritative statement of customary international law. In any event, adopting the substance of a definition that might make sense as a General Assembly recommendation to a political body, such as the Security Council, does not necessarily make sense as a crime punishable by a judicial body. If the proposed definition were adopted, understandings should make clear that only the most serious and dangerous forms of illegal use of force constitute acts of aggression, and all relevant factors must be considered in each particular case to assess whether any particular use of force constitutes an act of aggression.

A third risk is that of unjustified domestic prosecutions. Too little attention has yet been paid to the question of how, if at all, the principle of complementarity would apply to the crime of aggression. The definition does little to limit the risk that State Parties will incorporate a definition—particularly one we believe is flawed—into their domestic law, encouraging the possibility that under expansive principles of jurisdiction, government officials will be prosecuted for alleged aggression in the courts of another state. Even if states incorporate an acceptable definition into their domestic law, it is not clear whether or when it is appropriate for one state to bring its neighbor’s leaders before its domestic courts for the crime of aggression. Such domestic prosecutions would not be subject to any of the filters under consideration here, and would ask the domestic courts of one country to sit in judgment upon the state acts of other countries in a manner highly unlikely to promote peace and security.

In addition, any understandings must acknowledge that the question of how properly to define the crime of aggression is not logically independent from the issue of triggers and filters. The Princeton Process repeatedly reaffirmed that nothing is agreed until everything is agreed. If the issue of filters and triggers is decided separately from the definition itself, it should be clearly understood that the definition might need to be revisited upon future consideration of the filter and other related issues.

In sum, the first week of this Conference has revealed that there is no consensus on a number of contested issues—such as the amendment rule and jurisdictional filters and triggers—and that other issues—such as the elements of the crime’s definition—simply cannot be resolved properly in the days remaining. Some of the other issues we have addressed—particularly what understandings and conditions should be attached to the definition of the crime of aggression—are discussed in preliminary form in the Conference Room Paper and the Chairman’s Non-paper. We hope that the Conference can now turn urgently to develop these ideas and to see what consensus is genuinely possible in our time left here in Kampala.

In closing, let me reiterate: under the Obama Administration, the United States will continue to support institutions and prosecutions that hold accountable those who intentionally target innocent civilians. All of the members of our delegation have been deeply moved by testimony we have heard over the years, and especially during this week, from victims of war crimes. The United States is committed to taking concrete steps to ease the plight of those harmed by the crimes of greatest international concern. But this does not requiring imposing artificial deadlines on our important work. We should be determined to stay with the task long enough to ensure that we can accomplish something of enduring value to the people to whom we owe protection. Surely, finishing the unfinished business of Rome does not mean rushing to a premature conclusion on institution-transforming amendments on which there is not yet genuine consensus. Instead, finishing the work of Rome means building a stronger Court, with a renewed commitment to pursuing meaningful solutions by genuine consensus that can advance the cause of human rights and international justice.

Thank you.