The United States and the Crime of Aggression

Earlier this week, the White House issued a statement condemning the 'act of aggression' of North Korea in the sinking of the South Korean ship in March. Would this 'act of aggression' be punishable under the Rome Statute if the amendments are adopted at the Review Conference?
It is hard to answer the question at present, given the available options and the lack of consensus on the definition of the crime as well as the preconditions for the exercise of jurisdiction. The very narrow definition favoured by the United States would probably exclude this 'act of aggression'. Moreover, the option by which the consent to jurisdiction of both the victim and the perpetrator States is required would also rule out prosecution. South Korea is a State party to the Statute, but North Korea is not.

In late March, United States Ambassador Harold Koh delivered an address to the American Society of International Law in which he described the International Criminal Court as a 'wobbly bicycle' and appeared to urge that the negotiations on the crime of aggression be suspended. Here are the relevant bits of his remarks:

The crime of aggression, which is a jus ad bellum crime based on acts committed by the state, fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity—which are jus in bello crimes directed against particular individuals. In particular, we are concerned that adopting a definition of aggression at this point in the court’s history could divert the ICC from its core mission, and potentially politicize and weaken this young institution. Among the States Parties we found strongly held, yet divergent, views on many fundamental and unresolved questions.
First, there are questions raised by the terms of the definition itself, including the degree to which it may depart from customary international law of both the “crime of aggression” and the state “act of aggression.” This encompasses questions like what does it mean when the current draft definition requires that an act of aggression must be a “manifest” –as opposed to an “egregious” violation of the U.N. Charter?
A second question of who decides. The United States believes that investigation or prosecution of the crime of aggression should not take place absent a determination by the U.N. Security Council that aggression has occurred. The U.N. Charter confers on the Security Council the responsibility for determining when aggression has taken place. We are concerned by the confusion that might arise if more than one institutionwere legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
Third, there are questions about how such a crime would potentially affect the Court at this point in its development. For example, how would the still-maturing Court be affected if its prosecutor were mandated to investigate and prosecute this crime, which by its very nature, even if perfectly defined, would inevitably be seen as political--both by those who are charged, as well as by those who believe aggressors have been wrongly left uncharged? To what extent would the availability of such a charge place burdens on the prosecutor in every case, both those in which he chooses to charge aggression and those in which he does not? If you think of the Court as a wobbly bicycle that is finally starting to move forward, is this frankly more weight than the bicycle can bear?
Fourth, would adopting the crime of aggression at this time advance or hinder the key goals of the stock taking exercise: promoting complementarity, cooperation, and universality? With respect to complementarity, how would this principle apply to a crime of aggression? Do we want national courts to pass judgment on public acts of foreign states that are elements of the crime of aggression? Would adding at this time a crime that would run against heads of state and senior leaders enhance or obstruct the prospects for state cooperation with the Court? And will moving to adopt this highly politicized crime at a time when there is genuine disagreement on such issues enhance the prospects for universal adherence to the Rome Statute?
All of these questions go to our ultimate concern: has a genuine consensus yet emerged to finalize a definition of the crime of aggression? What outcome in Kampala will truly strengthen the Court at this critical moment in its history? What we heard at the Resumed Session in New York is that no clear consensus has yet emerged on many of these questions. Because this is such a momentous decision for this institution, which would bring about such an organic change in the Court’s work, that we believe that we should leave no stone unturned in search of genuine consensus. And we look forward to discussing these important issues with as many States Parties and Non States Parties as possible between now and what we hope will be a successful Review Conference in Kampala.

The United States branch of the International Law Association is circulating a letter with its policy advice to the United States government with respect to the crime of aggression. It urges the United States not to attempt to reopen the definition aspects, that have been negotiated over the previous decade and about which there is fairly broad agreement. Nevertheless, it also says the United States should address the issue of the triggering of jurisdiction 'in a way that satisfies U.S.interests, and yet is seen as constructive engagement by the majority of states'.
Supporters of the Court have welcomed the return of the United States to the process of building the institution. The United States will be out in force at Kampala. In one sense, this brings new momentum to the Court, but it is also bringing a very chill wind on the incorporation of the crime of aggression.