By Stephen G. Rademaker
The International Criminal Court's member countries will gather in May in Kampala, Uganda, where they will spend most of their conference considering whether to expand the court's jurisdiction to include the "crime of aggression." This is a bad idea on many levels.
The ICC was established to be a standing international mechanism to prosecute war crimes, genocide and crimes against humanity. Eight trials are underway at the court, all arising out of civil wars in Africa. The court has yet to convict a defendant of any of these offenses.
Nor has the ICC ever prosecuted a case arising out of a conflict between states. But this would change quickly if it is granted jurisdiction over aggression, which the United Nations has defined as occurring when one state uses armed force against another in a manner inconsistent with the U.N. Charter.
Proponents say that previous efforts to prevent war, such as the Kellogg-Briand Pact of 1928 and the U.N. Charter of 1945, failed because they were toothless. Empower this court to prosecute national leaders who order acts of aggression, they contend, and aggression finally will be deterred.
But the effect would go beyond the court's 110 members consenting to prosecution of their own leaders for alleged acts of aggression. The ICC would be empowered to prosecute the leaders of any country that commits aggression on the territory of a member. In the future, then, although Russia is not a member, its leaders could be prosecuted for acts of aggression against a member, such as Georgia. Likewise, the leaders of Israel (another non-member) could be prosecuted for future operations on the territory of members such as Jordan.
For the United States, a non-member, there would be implications any time the use of force was contemplated on the territory of a member. To put this in perspective, consider some of the countries where we have used force in the past two decades: Panama, Bosnia, Serbia, Afghanistan. All are ICC members today.
Washington is confident that it did not commit aggression in those countries. But Washington has always been the sole judge of whether a particular use of force was justified under international law. If the ICC acquires jurisdiction to prosecute aggression, the court would be responsible for deciding whether it agrees, say, that a Manuel Noriega or Slobodan Milosevic provoked U.S. action against him.
Should it disagree with the U.S. judgment, the court would be empowered to prosecute the "perpetrators." Certainly these would include the president, the secretary of defense and other top officials such as the chairman of the Joint Chiefs of Staff. Members of Congress who voted to authorize or fund the operation also would be potential defendants.
The Obama administration took office eager to ease U.S. hostility toward the ICC. But the potential effects of this proposal have prompted the administration to argue against it. At a minimum, U.S. officials have said, a U.N. Security Council finding that aggression occurred should be required before the ICC could act.
With such pleas apparently falling on deaf ears, the administration reportedly is debating whether to seek some sort of compromise in Kampala. It would be a mistake, however, for Washington to bargain on the margins of the conference. While empowering the ICC to prosecute aggression would be bad for the United States, it would be worse for the court itself.
The ICC is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression. If Russia were to attack Georgia again, would the ICC really indict Vladimir Putin and Dmitry Medvedev? Or would it concoct a reason to look the other way? Which would be worse for the court's credibility and prospects for long-term success?
Similarly, is the court really capable of sorting out through a judicial process who hit whom first in the festering conflicts of the Middle East? Could it afford politically to exonerate Israel of charges of aggression? Or would it bow to overwhelming pressure to blame Israel first, as routinely happens at the United Nations? Again, which course of action would be more politically damaging?
Giving the ICC jurisdiction over aggression would probably prove fatal to the court. Exercising such jurisdiction would almost immediately entangle it in international controversies that defy judicial resolution, quickly discrediting the institution.
The Obama administration is right to use diplomatic means to explain why the court's jurisdiction should not be expanded. But it should make no deals and offer no inducements to persuade court members not to jeopardize the institution. Instead, if reason fails, Washington should follow the political adage that when your adversary is determined to jump off a cliff, get out of his way.
