Defining ‘aggression’ for the International Criminal Court

David Kaye warns in his June 1 Op-Ed article that bringing the crime of aggression within its ambit may erode support for the International Criminal Court. It is true that the ICC has done an admirable job in the years since its founding in holding trials for those accused of war crimes, crimes against humanity and genocide. Without the ICC, these individuals, accused of the most heinous mass crimes, might not ever face justice and punishment.

The ICC is an institution that our nation’s founders would have recognized. The ICC springs from the same European Enlightenment principles that informed America’s founding, including the idea that there are certain basic rights afforded to all people. Although the United States has not joined the ICC, the treaty that created the court relies on principles and ideas long promoted by American thinkers and lawyers. Adding the crime of aggression to the ICC’s jurisdiction follows in the tradition of the Nuremberg and Tokyo trials after World War II. The U.S. actively participated in the formation and successful operation of the more recent special purpose international tribunals for Sierra Leone, Rwanda and the former Yugoslavia.

Of course, many of the current objections to expanding the jurisdiction of the ICC to include aggression were also raised in the 1990s against the founding of the court. Aren’t there always practical difficulties in asserting an important principle?

The 111 nations party to the court may decide this month at the 2010 ICC review conference to include the crime of aggression within the ICC’s jurisdiction. The value of the protection the ICC can offer against aggression may outweigh the practical concerns Kaye enumerates. Evidence shows that prosecution by the ICC for conscripting child soldiers has caused combatant leaders in other countries to release child soldiers and spurn their use. The establishment of global standards can have a positive deterrent effect. A country without the military power of the United States might reasonably conclude that the rule of law is valuable protection against the use of aggressive force.

Even though the United States is not party to the ICC, it is right and good policy that American diplomats will be attending the meetings in Uganda as observers without the privilege of voting. The discussions there are important, and U.S. participation is valuable for our country and for the world. The United States led in helping the world understand the meaning of “aggressive war” in the Nuremberg and Tokyo war crimes trials. The U.S. should cooperate with the ICC and resolve over time the impediments to the U.S. formally joining the ICC, including addressing the concerns of the American defense community.

Diplomats, lawyers, humanitarians, generals and statesmen from around the globe have labored over the past eight years in the special working group on the crime of aggression to develop the consensus on the definition of “aggression” now being considered in Uganda. All should respect this definition. If the parties to the ICC cannot agree this month to expand the court’s jurisdiction to include aggression, they ought at least accept the proposed definition of the crime, and the U.S. could accept this result as consistent with fundamental American principles.

Robert A. Enholm is executive vice president of the Washington-based Citizens for Global Solutions.