The ICC and an 'aggression' mandate

Posted: Wednesday, June 09, 2010

The following editorial first appeared in the Los Angeles Times:

If there were an international court with the power to prosecute crimes of aggression, we might be able to haul North Korean dictator Kim Jong Il before it to answer for his country's sinking of a South Korean warship in March. We could nail Russian leaders for their invasion of Georgia in 2008, and maybe even throw the book at the Argentines who sparked the Falklands War in 1982. World peace could be enforced with the tapping of a gavel rather than the pounding of artillery.

It's an inspiring goal. It's also hopelessly impractical.

Representatives from around the globe have been meeting in Uganda for a week to discuss changes to the mandate of the International Criminal Court, which since its founding in 1998 has attracted 111 member states, has indicted 14 people and is conducting two trials. The court is currently empowered to pursue cases against leaders accused of crimes against humanity, war crimes and genocide, but the key topic for discussion in Uganda is the addition of a fourth crime: "aggression."

The United States is not a signatory to the treaty that created the ICC, yet the State Department has sent a team to Uganda. Its goal, in part, seems to be to prevent an expansion of the court's mandate. That's the right approach, because an aggression statute would imperil the court's credibility.

The problem with legislating "aggression" is that in nearly all conflicts between nations, each side believes the other to be the aggressor. It's comparatively easy to try a dictator for committing genocide against his own people, but how does one decide whether, for example, the U.S. was an "aggressor" when it invaded Iraq, which it believed was stockpiling biological and chemical weapons? Was the Israeli invasion of southern Lebanon in 2006 an act of aggression? To Israelis it was an act of self-defense, but much of the world saw it differently. Fear of international prosecution might deter countries from using military force to depose a murderous dictator or to prevent a dangerous regime from developing weapons of mass destruction.

And who decides whether to prosecute such cases? The veto-holding members of the U.N. Security Council think they alone should have the power to launch an investigation, but the rest of the world disagrees. If the Security Council gets its way, smaller countries will dismiss the court as a repressive tool of the great powers; if it doesn't, and the General Assembly or the court prosecutor decides, there would be charges of politicization, and the court could end up fueling more conflicts than it avoids.

The ICC is gaining in membership and respect, but it has yet to complete a trial. It hasn't come close to building the trust and track record needed before it can tackle an issue like international aggression, which some of the world's best legal minds have struggled for decades to define. We are deeply conflicted about whether the United States should join the court, but if aggression is added to the ICC's mandate, there is no chance such an outcome would occur.

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