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111th Congress                                                  S. Prt.
 2d Session                 COMMITTEE PRINT                      111-55
_______________________________________________________________________

                      INTERNATIONAL CRIMINAL COURT

                           REVIEW CONFERENCE

                            KAMPALA, UGANDA

                         MAY 31- JUNE 11, 2010

                               __________

                  A JOINT COMMITTEE STAFF TRIP REPORT

                      prepared for the use of the

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                     One Hundred Eleventh Congress

                             Second Session

                           September 2, 2010







                  U.S. GOVERNMENT PRINTING OFFICE
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                     COMMITTEE ON FOREIGN RELATIONS

                 JOHN F. KERRY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin       BOB CORKER, Tennessee
BARBARA BOXER, California            JOHNNY ISAKSON, Georgia
ROBERT MENENDEZ, New Jersey          JAMES E. RISCH, Idaho
BENJAMIN L. CARDIN, Maryland         JIM DeMINT, South Carolina
ROBERT P. CASEY, Jr., Pennsylvania   JOHN BARRASSO, Wyoming
JIM WEBB, Virginia                   ROGER F. WICKER, Mississippi
JEANNE SHAHEEN, New Hampshire        JAMES M. INHOFE, Oklahoma
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
                  Frank G. Lowenstein, Staff Director
            Kenneth A. Myers, Jr., Republican Staff Director

                                  (ii)









                            C O N T E N T S

                              ----------                              
                                                                   Page
Letter of Transmittal............................................     v
Background.......................................................     1
Pre-Conference Discussions of Agression..........................     1
Historical U.S. Position on Aggression...........................     3
The Obama Adminstration's Approach to the Kampala Conference.....     4
Discussions on Aggression at the Kampala Conference..............     6
Outcome..........................................................     8
Analysis of Outcome..............................................     9
    Implications for the United States...........................     9
    Implications for the ICC.....................................    11
Further Observations on the Negotiation Process..................    11
Annex--ICC Review Conference Decision on Aggression..............    13

                                 (iii)










                         LETTER OF TRANSMITTAL

                              ----------                              

                              United States Senate,
                            Committee on Foreign Relations,
                                 Washington, DC, September 2, 2010.
    Dear Colleagues: In May 2010, we directed two members of 
the Foreign Relations Committee staff, Minority Chief Counsel 
Michael Mattler and Majority Deputy Chief Counsel Andrew 
Keller, to observe U.S. participation at the Review Conference 
of the Rome Statute of the International Criminal Court (ICC), 
which took place in Kampala, Uganda, from May 31-June 11, 2010. 
The conference represented the first time parties to the ICC 
considered amendments to the Rome Statute since it entered into 
force in 2002. We thank the co-heads of the U.S. delegation, 
State Department Legal Adviser Harold Koh and Ambassador at 
Large for War Crimes Issues Stephen Rapp, along with their 
colleagues from the Departments of State, Defense, and Justice, 
for including Mr. Mattler and Mr. Keller as part of the U.S. 
delegation.
    The United States is not a party to the ICC, and is 
unlikely to become a party anytime soon. Nonetheless, the 
United States had interests at stake in the discussions at 
Kampala. The principal focus of the Kampala Conference was 
consideration of proposals to add to the ICC's jurisdiction a 
new crime of aggression, some of which could have seriously 
affected uses of military force by the United States and its 
allies. The United States also had an interest in better 
understanding the state of the ICC's work generally, and its 
prospects for making an effective contribution to promoting 
accountability for genocide, war crimes, and crimes against 
humanity. In this regard, the United States, under both the 
George W. Bush and Obama administrations, has supported the 
ICC's investigation of such crimes in Darfur, pursuant to a 
2005 referral by the U.N. Security Council.
    As this report highlights, the Kampala Conference adopted a 
complicated decision that envisions the future addition of a 
crime of aggression to the ICC's jurisdiction. The proposed 
aggression regime is flawed in several respects, but 
nonetheless contains important protections for U.S. interests. 
Most significantly, U.S. persons, including U.S. officials and 
military members, could not be investigated or prosecuted for 
aggression by the ICC without the consent of the United States. 
The proposed regime will not enter into force for at least 
seven years, and will do so only after a further decision by 
the ICC's parties to bring it into force. U.S. participation at 
the Kampala Conference played an important role in securing 
these protections.

                                  (v)

    The report also observes that, with the Conference's focus 
on adding a new crime to the ICC's mandate, ICC parties spent 
comparatively little energy at the Conference addressing a 
range of operational challenges currently faced by the Court. 
Eight years after entering into force, the ICC has yet to 
complete its first trial and is encountering a variety of 
practical obstacles to its effectiveness. Absent greater focus 
on addressing such difficulties in the ICC's operations, the 
court may continue to struggle in carrying out its basic 
judicial functions.
    We hope you find this report useful and informative. We 
welcome any comments you may have on it.
            Sincerely,
                                   John F. Kerry,
                                           Chairman.
                                   Richard G. Lugar,
                                           Ranking Minority Member.
 
                      INTERNATIONAL CRIMINAL COURT

                           REVIEW CONFERENCE

                 KAMPALA, UGANDA, MAY 31- JUNE 11, 2010

                              ----------                              


                               Background

    The International Criminal Court was established in 1998. 
Under the treaty establishing the ICC, known as the Rome 
Statute, the Court has jurisdiction to investigate and 
prosecute cases of genocide, war crimes, and crimes against 
humanity. The treaty entered into force in 2002 and currently 
has 113 states parties. The United States is not a party to the 
ICC.
    On May 31, 2010, the parties to the ICC convened a 2-week 
conference to assess the work of the ICC since its inception 
and to consider amendments to the Rome Statute. The United 
States sent a delegation to the conference and participated as 
an observer.
    The principal issue before the conference was whether to 
amend the Rome Statute to add a new crime--aggression--to the 
ICC's jurisdiction. The conference also considered two more 
technical amendments to the statute, and held a series of 
moderated discussions to take stock of elements of the ICC's 
performance to date. The stocktaking discussions addressed the 
relationship between the court's work and broader efforts to 
resolve conflict and restore peace, the impact of the court's 
work on victims of crimes, the extent of cooperation with the 
court by states, and efforts by states to establish 
accountability for serious crimes at the national level. This 
report addresses the Conference's discussions and decisions 
related to the crime of aggression.

                Pre-Conference Discussions of Aggression

    As adopted in 1998, the Rome Statute gave the ICC 
jurisdiction over three crimes: genocide, war crimes, and 
crimes against humanity. At the Rome Conference, negotiators 
discussed giving the court jurisdiction over the additional 
crime of aggression, but were unable to agree on a definition 
of the crime or on the conditions under which the ICC might 
exercise jurisdiction over it. As a compromise, the Rome 
Statute provided that the ICC could exercise jurisdiction over 
aggression in the future if the statute were amended to address 
these issues.
    Following the Rome Conference, the ICC's Assembly of States 
Parties established a special working group on the crime of 
aggression. The working group met between 2003 and 2009 and 
developed proposals on both a definition of the crime 
aggression and on conditions under which the ICC might exercise 
jurisdiction over it. The United States did not participate in 
the working group. The working group's proposals are described 
briefly below.
    Definition of Aggression--In contrast to the other crimes 
within the ICC's jurisdiction, aggression has not previously 
been widely employed as a criminal law concept in domestic or 
international law. In the aftermath of World War II, the 
International Military Tribunals in Nuremburg and Tokyo 
prosecuted a few German and Japanese officials for ``crimes 
against peace,'' though there was no widely agreed definition 
of this concept prior to the war. Following the war, the U.N. 
Charter gave the Security Council the authority to determine 
when a state had committed an ``act of aggression'' and to 
decide on measures to be taken to restore international peace 
and security. But the Charter's treatment of aggression does 
not provide for criminal liability on the part of individuals.
    The working group recommended a definition based largely on 
a 1974 U.N. General Assembly resolution, which was adopted for 
the purpose of providing guidance to the U.N. Security 
Council's use in determining whether a state had committed 
aggression for the purposes of the U.N. Charter. The working 
group's definition reads as follows:

                   Article 8 bis--Crime of aggression

    1. For the purpose of this Statute, ``crime of aggression'' means 
the planning, preparation, initiation or execution, by a person in a 
position effectively to exercise control over or to direct the 
political or military action of a State, of an act of aggression which, 
by its character, gravity and scale, constitutes a manifest violation 
of the Charter of the United Nations.
    2. For the purpose of paragraph 1, ``act of aggression'' means the 
use of armed force by a State against the sovereignty, territorial 
integrity or political independence of another State, or in any other 
manner inconsistent with the Charter of the United Nations. Any of the 
following acts, regardless of a declaration of war, shall, in 
accordance with United Nations General Assembly resolution 3314 (XXIX) 
of 14 December 1974, qualify as an act of aggression:
          (a) The invasion or attack by the armed forces of a State of 
        the territory of another State, or any military occupation, 
        however temporary, resulting from such invasion or attack, or 
        any annexation by the use of force of the territory of another 
        State or part thereof;
          (b) Bombardment by the armed forces of a State against the 
        territory of another State or the use of any weapons by a State 
        against the territory of another State;
          (c) The blockade of the ports or coasts of a State by the 
        armed forces of another State;
          (d) An attack by the armed forces of a State on the land, sea 
        or air forces, or marine and air fleets of another State;
          (e) The use of armed forces of one State which are within the 
        territory of another State with the agreement of the receiving 
        State, in contravention of the conditions provided for in the 
        agreement or any extension of their presence in such territory 
        beyond the termination of the agreement;
          (f) The action of a State in allowing its territory, which it 
        has placed at the disposal of another State, to be used by that 
        other State for perpetrating an act of aggression against a 
        third State;
          (g) The sending by or on behalf of a State of armed bands, 
        groups, irregulars or mercenaries, which carry out acts of 
        armed force against another State of such gravity as to amount 
        to the acts listed above, or its substantial involvement 
        therein.

    Three key elements are at the core of the proposed 
definition:
    First, aggression is a crime committed by political or 
military leaders--such as heads of state or senior military 
officials--who, on behalf of a state, plan or direct acts of 
aggression carried out by others. Aggression is not committed 
by officials or soldiers carrying out the decisions of others.
    Second, aggression involves the use of force in violation 
of the U.N. Charter. Under the U.N. Charter, states are 
prohibited from using force against the territorial integrity 
or political independence of another state except in self-
defense from an armed attack or if authorized by the U.N. 
Security Council.
    Third, aggression arises only in the case of ``manifest'' 
violations of the U.N. Charter, meaning that the character, 
gravity, and scale of the violation are clearly established.
    Conditions for the Exercise of Jurisdiction Over 
Aggression--The working group was unable to arrive at a 
consensus recommendation regarding the conditions under which 
the ICC might exercise jurisdiction over aggression. 
Delegations fell broadly into two camps on this issue.
    Permanent members of the U.N. Security Council took the 
position that the ICC should exercise jurisdiction over 
aggression only in cases in which the U.N. Security Council had 
specifically asked it to do so. The U.N. Charter vests the 
Security Council with the responsibility for determining the 
existence of an act of aggression, and measures to be taken to 
maintain or restore international peace and security. An 
independent role for the ICC in investigating and prosecuting 
aggression could prejudice the Council's efforts to resolve 
situations involving potential aggression and create the risk 
of broader conflict.
    Most other countries supported some authority for the ICC 
to exercise jurisdiction over aggression independently of the 
U.N. Security Council. These countries were concerned that a 
deadlock in the Security Council over a particular case would 
prevent the ICC from being able to address a case of 
aggression. They also argued that the Security Council's 
involvement in deciding whether cases could proceed would 
inject political considerations into judicial matters and 
undermine the integrity of the ICC's proceedings.

                 Historical U.S. Position on Aggression

    While the United States did not participate in the work of 
the Assembly of States Parties' special working group on 
aggression, the United States has historically expressed 
concerns about proposals to include aggression within the ICC's 
jurisdiction.
    In 1998 testimony before the Senate Foreign Relations 
Committee, the Clinton administration's chief negotiator at the 
Rome Conference, David Scheffer, expressed the following set of 
concerns about the treatment of aggression in the original Rome 
Statute:

          We are disappointed with the treatment of the crime 
        of aggression. We and others had long argued that such 
        a crime had not been defined under customary 
        international law for purposes of individual criminal 
        responsibility. We also insisted, as did the 
        International Law Commission in 1994, that there had to 
        be a direct linkage between a prior Security Council 
        decision that a state had committed aggression and the 
        conduct of an individual of that state. The statute of 
        the court now includes a crime of aggression, but 
        leaves it to be defined by a subsequent amendment to be 
        adopted 7 years after entry into force. There is no 
        guarantee that the vital linkage with a prior decision 
        by the Security Council will be required by the 
        definition that emerges, if in fact a broadly 
        acceptable definition can be achieved. We will do all 
        we can to ensure that such linkage survives.\1\
---------------------------------------------------------------------------
    \1\ Statement of David Scheffer, Ambassador at Large for War Crimes 
Issues, to the U.S. Senate Committee on Foreign Relations, July 23, 
1998.

    This statement reflected two principal concerns at the 
heart of the U.S. position:
    First, the United States has expressed concerns that 
aggression has not been sufficiently defined to form an 
appropriate basis for criminal prosecutions. Prosecutions based 
on a definition of aggression that does not reflect customary 
international law would create the risk that individuals could 
face criminal penalties for uses of force that have not 
traditionally been considered unlawful by the international 
community. This could serve to discourage a wider range of uses 
of force than are prohibited under existing customary 
international law, including some that may be necessary to 
protect the security interests of the United States and its 
allies. In addition, in the absence of a clear and accepted 
definition of the crime, potential defendants would not have 
clear guidance about what actions are prohibited, raising 
fundamental questions of fairness and due process in any 
criminal proceedings.
    Second, the United States has expressed concerns about the 
potential impact of an ICC crime of aggression on the role and 
authority of the U.N. Security Council. As a permanent member 
of the Security Council, the United States has an interest in 
ensuring that actions by the ICC in relation to alleged cases 
of aggression do not interfere with the Council's own efforts 
to address matters of international peace and security.
    In addition to these considerations, U.S. policy has also 
stressed a strong interest in protecting U.S. persons, 
including U.S. officials and members of the armed forces, 
against potential ICC investigations or prosecutions for 
aggression, which may be unfounded or politically motivated. As 
a nonparty to the ICC, the United States has long objected to 
any efforts by the ICC to assert jurisdiction over Americans 
with respect to its core crimes of genocide, war crimes, and 
crimes against humanity. Securing protections against such 
assertions of jurisdiction by the ICC was a core objective of 
the American Servicemembers' Protection Act, passed by Congress 
in 2002.\2\ Concerns about U.S. exposure to an ICC regime for 
aggression would be especially acute, given that aggression 
cases would involve potential criminal prosecution of the 
President and other senior political and military leaders for 
their decisions and actions related to matters of U.S. national 
security.
---------------------------------------------------------------------------
    \2\ 22 U.S.C.  7421 et seq.
---------------------------------------------------------------------------

     The Obama Administration's Approach to the Kampala Conference

    The administration's decision to attend the Kampala 
Conference as an observer reflected two principal 
considerations. First, the administration sought to address 
U.S. concerns and protect U.S. interests with respect to the 
proposed ICC aggression regime, including those discussed 
above. Second, the administration sought to express and 
reinforce longstanding U.S. support for efforts to promote 
accountability for international crimes such as genocide, 
crimes against humanity, and war crimes. This included 
exploring ways in which the United States, as a nonparty to the 
ICC, could work with ICC members to advance shared objectives 
in this area.
    Consistent with these objectives, the United States 
delegation in Kampala raised a series of concerns in connection 
with the conference's consideration of the crime of aggression. 
These concerns fell into four main categories:
    Concerns With the Content of the Definition--The U.S. 
delegation observed that the proposed aggression definition was 
vague in a number of respects, creating uncertainty on several 
important issues. They noted that the proposed definition 
applied to ``acts of aggression'' rather than ``wars of 
aggression'' that were the subject of prosecution at Nuremburg, 
leaving unclear the scope of the crime. They also noted that it 
was unclear how the term ``manifest'' in the definition would 
apply, including whether it must be shown that a state was 
``manifestly'' not acting in self-defense or with the consent 
of the state where force was used. It was also unclear how the 
``manifest'' standard would apply in cases where force was used 
for the purpose of preventing serious crimes such as genocide, 
war crimes, and crimes against humanity. The U.S. delegation 
also noted ways in which the definition departed from existing 
customary international law, as well as from the General 
Assembly Resolution on which the definition was based. These 
included the definition's failure to specify 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.
    Concerns With the Conditions for the Exercise of 
Jurisdiction Over Aggression--Consistent with the historical 
U.S. position, the U.S. delegation took the position that a 
prior decision of the U.N. Security Council that aggression had 
occurred should be a precondition to the ICC's exercise of 
jurisdiction over the crime of aggression in any case. The 
delegation opposed proposals for alternative jurisdictional 
schemes in which the ICC could exercise jurisdiction over 
aggression without prior Security Council approval, including 
proposals in which the ICC Prosecutor could proceed with cases 
after a period of notice to the Security Council unless the 
Council affirmatively decided that the case should not proceed. 
The U.S. delegation also stressed longstanding U.S. concerns 
about any effort to subject states to ICC jurisdiction over 
aggression without their consent, except in cases of referral 
by the U.N. Security Council.
    Concerns With the Impact of the ICC's Aggression Regime for 
National Justice Systems--The U.S. delegation expressed concern 
that adding aggression to the Rome Statute could lead to 
efforts by individual states to prosecute leaders of other 
countries for aggression through their national courts. This 
risk arises because, under the Rome Statute, the ICC is a court 
of last resort and may exercise jurisdiction over a crime only 
where relevant states are unwilling or unable to investigate 
and prosecute them through their national justice systems. 
Under this system, states are encouraged to prosecute crimes 
domestically rather than requiring recourse to the ICC. The 
U.S. delegation expressed concerns that encouraging domestic 
prosecutions of aggression, which could involve two countries 
to a conflict each trying to prosecute the other's leaders in 
its own courts, could exacerbate tensions and undermine 
international peace and security.
    Concerns With the Process for Making Decisions About 
Aggression--In light of the divergent views over the 
circumstances in which the ICC might exercise jurisdiction over 
aggression, the U.S. delegation also stressed the importance 
that any decisions be based on a consensus among ICC members 
(which would necessarily include the United Kingdom and France, 
which are permanent members of the U.N. Security Council). The 
U.S. delegation observed that all prior Rome Statute crimes had 
been adopted by consensus and that adoption of a regime for the 
politically charged crime of aggression over the objections of 
some countries would undermine the legitimacy of both the crime 
and the ICC itself.

          Discussions on Aggression at the Kampala Conference

    The negotiations at the Kampala Conference focused on four 
principal issues: the content of the definition of aggression, 
the conditions for the exercise of jurisdiction over 
aggression, whether the aggression regime would apply to states 
that had not consented to it, and the process for adopting 
amendments to the Rome Statute regarding aggression.
    Content of the Definition--In spite of U.S. criticism of 
the definition of the crime of aggression proposed by the 
Assembly of States Parties' special working group, the 
definition itself was widely supported at the conference, 
including by U.S. allies such as the United Kingdom and France. 
This support did not appear to be based on substantive 
disagreement with the questions raised by the United States 
about the definition. Instead, it seemed to reflect concern 
that reopening the definition would delay the process of 
reaching a final decision on aggression (to which many 
countries were firmly committed) and that other compromises 
that had been made in arriving at the proposed definition might 
be revisited if the text were reconsidered.
    While the Conference was accordingly unwilling to entertain 
changes to the definition's text, delegations were willing to 
discuss adopting ``understandings'' addressing elements of the 
definition. Such understandings were viewed as a means of 
providing authoritative guidance to the ICC Prosecutor and 
judges on interpretive issues related to the definition. The 
United States proposed a series of understandings to address 
concerns it had raised about the definition. These included 
understandings designed to provide greater clarity about the 
meaning of a ``manifest'' violation of the U.N. Charter as used 
in the definition, to specify that an ICC aggression regime 
would not create the right or obligation for states to exercise 
domestic jurisdiction over alleged acts of aggression by other 
states, and to provide greater specificity about the level of 
gravity required to establish the existence of aggression.
    Conditions for the Exercise of Jurisdiction--This 
represented the most contentious issue of the conference. Most 
delegations opposed the position of the five permanent members 
of the Security Council that the ICC Prosecutor should have 
authority to investigate and prosecute aggression only in cases 
where the Council had previously determined that a state had 
committed an act of aggression. This majority view reflected a 
concern that the ICC's judicial role required it to operate 
independently from political constraints. It also reflected 
deep dissatisfaction with the Security Council among developing 
countries, and concern that Security Council decisions would 
reflect the interests of the five permanent members rather than 
the interests of the international community as a whole.
    Most delegations proposed giving the Security Council at 
most a fixed period of time to determine whether a state had 
committed aggression in connection with a situation in which 
the ICC Prosecutor wished to investigate or prosecute an 
individual for aggression. In the absence of a determination by 
the Security Council by the end of the time period, these 
countries urged that the Prosecutor have the authority to move 
forward with the case on his own initiative.
    Consent Requirement--Delegations differed over whether a 
state must have consented to the ICC's aggression jurisdiction 
in order for its nationals to be subject to investigation and 
prosecution for aggression by the ICC. States were more divided 
on this question than on the question related to the role of 
the Security Council. In general most countries, particularly 
those in the developing world, opposed a requirement that a 
state consent before an aggression regime would apply to its 
nationals. They argued that prosecutions for aggression would 
be less likely, and the deterrent created by the regime less 
effective, if it applied only to states that had consented. A 
sizeable minority, including a number of European countries, 
supported a consent requirement, arguing that such consent is a 
basic requirement to bind a state under international law. All 
delegations agreed that no state consent would be required 
where the ICC was prosecuting aggression at the request of the 
U.N. Security Council, which has the authority to bind U.N. 
member states pursuant to the U.N. Charter.
    Process for Adopting Amendments Related to Aggression--
Delegations also differed over the correct process for amending 
the Rome Statute to address aggression. At issue in the debate 
were two alternative methods provided for under the Rome 
Statute for adopting amendments. Under the first method, 
contained in Article 121, paragraph 4, amendments are binding 
on all Rome Statute parties once they have been approved by \7/
8\ of the states parties. Under the second method, contained in 
Article 121, paragraph 5, amendments are binding only on those 
states that have accepted them.
    Delegations' positions on these procedural questions often 
mirrored their positions on whether state consent should be 
required for the ICC to have jurisdiction over the state's 
nationals. States opposed to a consent requirement tended to 
favor an amendment process that would bind all states so that 
an aggression regime could apply universally even if a minority 
of states objected to it and declined to ratify it. Supporters 
of a consent requirement generally supported an amendment 
process in which amendments would apply only to those states 
that ratified them, so that nonratifying states could avoid 
being bound by a regime that was adopted over their objections.

                                Outcome

    Discussions at the Kampala Conference were unable to fully 
resolve the most contentious issues related to the proposed 
aggression regime. The Conference adopted a complicated 
decision that reflected compromises on several key issues. The 
decision provides that the envisioned aggression regime will 
not become operational for at least seven years, and even then 
only after a further decision by the ICC's Assembly of States 
Parties to bring it into effect. The text of the decision is 
attached as an annex to this report. Below is a summary of the 
key provisions of the decision:
    Definition of Aggression--The Conference adopted the 
definition of aggression proposed by the Working Group without 
any amendment. In an effort to address concerns raised by the 
U.S. delegation about lack of clarity in aspects of the 
definition, the Conference adopted a series of interpretive 
understandings relating to aspects of the definition. Among the 
approved understandings were:

   An understanding specifying that, in assessing 
        whether an act of aggression constitutes a ``manifest'' 
        violation of the U.N. Charter, the character, gravity, 
        and scale of the act must all be considered, and that 
        no one of these elements by itself can satisfy the 
        ``manifest'' standard;
   An understanding specifying that only the most 
        serious and dangerous forms of the illegal use of force 
        constitute aggression, and that determinations of 
        aggression require considering all the relevant 
        circumstances of each case, including the gravity of 
        the acts and their consequences; and
   Two understandings specifying that the amendments 
        address the crime of aggression only for the purpose of 
        the Rome Statute, and that they shall not be 
        interpreted as creating the right or obligation for 
        states to exercise domestic jurisdiction over alleged 
        acts of aggression by other states.

    Conditions for the Exercise of Jurisdiction Over 
Aggression--The Conference adopted two separate procedures for 
the ICC to exercise jurisdiction over aggression. Under the 
first, the Court could exercise jurisdiction in cases 
specifically referred to the ICC by the U.N. Security Council. 
Under the second, the Court could exercise jurisdiction when 
requested by a state in which aggression is alleged to have 
occurred, or when the ICC Prosecutor decides on his own 
initiative to pursue a case. In the latter two cases, before an 
investigation may commence, the ICC Prosecutor must consult the 
U.N. Security Council and may only proceed if the Council 
either determines that the case involves a situation in which a 
state has committed aggression or fails to make any 
determination on this question. Where the Council makes no 
determination, the Prosecutor must receive authorization from a 
Pre-Trial Chamber of ICC Judges before he may commence an 
investigation. Where the Prosecutor proceeds with an 
investigation in the absence of an affirmative Security Council 
determination that aggression has occurred, the Council may 
pass a resolution suspending the investigation for 1 year, and 
may renew such a suspension for subsequent periods.
    Consent Requirement--The decision adopted by the Conference 
allows states parties to the ICC to decline to accept the ICC's 
jurisdiction over aggression in cases that have not been 
referred by the U.N. Security Council. Similarly, the decision 
also specifies that the ICC shall not exercise jurisdiction in 
respect of alleged aggression committed by the nationals or on 
the territories of states that are not parties to the ICC, 
except where referred by the U.N. Security Council. All states 
would be subject to the ICC's aggression jurisdiction in cases 
referred by the Security Council.
    Procedure for Adopting Amendments and Entry into Force--The 
decision adopted by the Conference provides for the relevant 
amendments to the Rome Statute to be adopted under Article 
121(5) of the Rome Statute, meaning that the amendments will 
apply only to those states parties to the Rome Statute that 
approve them and not to those that decline to ratify. In 
addition, the amendments establish two additional requirements 
before they may enter into force. First, they will apply only 
to acts of aggression committed one year after 30 states have 
ratified them. Second, the ICC won't exercise jurisdiction over 
aggression until a decision is taken by the ICC parties, no 
earlier than January 1, 2017, to bring the ICC's aggression 
regime into effect.

                          Analysis of Outcome

    The Kampala Conference's outcome on aggression has 
implications for both the United States and the ICC. These are 
discussed below.

Implications for the United States

    1. Exemption for Non-States Parties--The most significant 
aspect of the outcome for the United States is its elimination 
of any risk that U.S. officials will be subject to prosecution 
for aggression by the ICC absent U.S. consent. The decision of 
the Assembly of States Parties exempts from key aspects of the 
ICC's aggression jurisdiction actions committed by the 
nationals or on the territories of countries, including the 
United States, that are not parties to the ICC. Such nonparties 
could only be prosecuted by the ICC for aggression in cases 
referred by the U.N. Security Council; they could not be 
prosecuted solely at the request of another country or by the 
ICC Prosecutor on his own initiative. Because the United States 
is a permanent member of the U.N. Security Council and has a 
veto over its decisions, the Council could not refer an 
aggression case involving U.S. officials to the ICC over the 
objection of the United States.
    With respect to other crimes in the ICC's jurisdiction--
genocide, war crimes, and crimes against humanity--the Rome 
Statute purports to give the ICC authority to prosecute 
nationals of countries that are not parties to the ICC without 
approval of the Security Council. As a nonparty, the United 
States has strenuously objected to this claim, and it has been 
a source of significant friction between the United States and 
the ICC. The ICC's decision not to repeat its claim of 
jurisdiction over nationals of nonparties when designing its 
aggression regime avoids a reigniting of this contentious 
issue.
    2. Potential Impact on Coalition Activities--Because many 
U.S. allies, including all NATO members except Turkey, are 
parties to the ICC, they would be potentially subject to the 
ICC's aggression jurisdiction once it is brought into effect. 
This could make some U.S. allies more hesitant to join with the 
United States in uses of force without clear U.N. Security 
Council approval, as was the case with the 1999 NATO military 
actions in Kosovo and the 2003 military action in Iraq.
    Two elements of the outcome adopted could mitigate such 
risks. First, under the decision adopted, states parties to the 
ICC can opt out of the ICC's aggression jurisdiction for cases 
not referred by the U.N. Security Council. If U.S. allies 
exercised this right, they would not incur any greater risk of 
prosecution for aggression by the ICC than would the United 
States. Second, understandings adopted in connection with the 
definition seek to underscore that aggression constitutes only 
the most serious and dangerous forms of the illegal use of 
force, and applies only when the character, gravity, and scale 
of the illegal use of force is manifest. These understandings 
arguably narrow the circumstances in which the ICC might bring 
an aggression case, and may reduce the likelihood that 
coalition military activities would be considered aggression, 
particularly when undertaken to address threats to civilian 
populations or to regional or international peace and security.
    3. Potential Adverse Development in Law Relating to Use of 
Force--The definition of the crime of aggression adopted by the 
Conference establishes vague standards that would govern 
important questions relating to the use of military force by 
states subject to the ICC's aggression regime. As noted by the 
U.S. delegation in Kampala, the definition adopted deviates 
from existing customary international law in a number of 
respects, and may serve inappropriately to discourage lawful 
uses of force. Interpretive understandings adopted in 
connection with the definition serve to mitigate some of its 
deficiencies, but the definition remains an unsound basis for 
addressing these issues. Were the definition to influence the 
future development of international law outside the context of 
the ICC, future U.S. leaders could face increased criticism in 
connection with some decisions regarding the use of force, 
including claims that their decisions amount to criminal 
conduct.
    4. Potential Impact on the U.N. Security Council--The 
regime adopted by the Conference, if made operational and 
subscribed to by a large number of states, would provide the 
ICC with authority to investigate and prosecute cases of 
aggression without the affirmative approval of the Security 
Council. In particular cases, the ICC's pursuit of an 
aggression case against a head of state or other senior 
government official could complicate the Security Council's 
efforts to address an ongoing threat to peace and security. 
Accordingly, there is some potential that the proposed 
aggression regime could reduce the effectiveness of the 
Council's mechanisms for addressing situations that may be of 
concern to the United States.
    5. Additional time to work for improvements--Because the 
aggression regime will not go into effect for at least seven 
years, the United States will have opportunities to further 
address concerns not resolved by the outcome. It could seek 
greater clarity in the definition of aggression, either through 
changes to the definition or the elements of crimes 
accompanying it, or through further understandings. It will 
also have the opportunity to consult with allies and to develop 
plans to mitigate risks an ICC aggression regime might pose to 
the ability to plan and carry out coalition military 
operations.

Implications for the ICC

    1. Potential Politicization--The crime of aggression has a 
significant political character to it, involving judgments 
about the legitimacy of decisions by state leaders to use force 
in situations affecting their security interests. This 
subjective political aspect of the crime is compounded by the 
vagueness of aspects of the definition of aggression. The 
outcome, if brought into effect, will place the ICC Prosecutor 
at the center of such political questions by giving him the 
mandate to investigate and prosecute aggression on his own 
initiative or at the request of a state. There is a risk that 
the Prosecutor will be drawn into disputes between states, and 
that the Prosecutor's decisions to pursue--or not pursue--
particular cases will be seen as taking sides in such disputes. 
Such perceptions could undermine the perceived objectivity and 
legitimacy of the ICC as a judicial institution.
    2. Potential Overstretch--The ICC is currently struggling 
to carry out its current mandate of pursuing cases of genocide, 
war crimes, and crimes against humanity. Eight years after the 
Rome Statute entered into force, the ICC has gained custody of 
fewer than half of the 15 individuals against whom it has 
brought public charges for the core crimes of genocide, war 
crimes, and crimes against humanity, and it has yet to complete 
its first trial. Though the ICC will have at least 7 years to 
further build its capacities before an aggression regime could 
take effect, there nonetheless remains the risk that adding 
aggression to the Court's mandate will divert resources from 
core tasks and make the ICC less effective as an institution.

            Further Observations on the Negotiation Process

    In addition to these issues specific to the outcome at 
Kampala, several other developments at the Conference may be of 
interest to the Foreign Relations Committee and to the Senate 
more generally:
    1. Widespread Dissatisfaction with the U.N. Security 
Council--Much of the discussion at the conference focused on 
whether the ICC Prosecutor should be given the authority to 
initiate aggression investigations and prosecutions 
independently from the U.N. Security Council. Discussion on 
this issue in both formal and informal settings suggested 
widespread dissatisfaction with the Security Council, 
particularly among delegations from developing countries. These 
delegations appeared to perceive the Council as an 
unrepresentative body that does not regularly act in the 
interests of the international community as a whole. For some 
delegations, pursuing outcomes that appeared to challenge the 
Security Council's primacy in addressing aggression appeared to 
be an independent objective in the negotiations, separate from 
the goal of pursuing decisions that would strengthen the ICC or 
international justice. Should such challenges to the Security 
Council's role and authority become more widespread and arise 
in other contexts, the Council's effectiveness as an 
institution could be diminished.
    2. Disparate Views Among NATO Members--While a potential 
ICC aggression regime could impact NATO military operations, 
NATO delegations at the conference were not unified in their 
substantive views or in their approach to the negotiations. 
NATO members also differed in their views on the importance of 
giving the ICC jurisdiction over aggression at all, with some 
being vigorous supporters and others skeptical at best. Some 
NATO delegations were among the chief proponents of an ICC role 
for aggression independent of the U.N. Security Council, while 
others felt strongly that the ICC should act on aggression only 
when asked by the Security Council. It did not appear from the 
negotiations that NATO members, as a group, had a common 
understanding about the potential implications of various 
proposals on their operations. Because of the relationship of 
the crime of aggression to decisions to use force that are 
often taken collectively, better NATO coordination on these 
issues in the future would be prudent.
    3. Effectiveness of U.S. Participation--U.S. participation 
at the conference was well-received, had a significant impact 
on the outcome and served to protect important U.S. interests. 
While there has been significant past friction between the 
United States and the ICC, and while the Obama administration 
has made clear that it does not support the United States 
becoming a party to the ICC, ICC parties nonetheless are 
welcoming of increased U.S. engagement with the ICC. Absent 
U.S. participation and engagement before and during the Kampala 
Conference, it is unlikely that the conference would have 
specifically exempted non-ICC parties from key portions of the 
proposed aggression regime. It is also unlikely that the 
conference would have adopted understandings to address 
ambiguities in aspects of the definition of aggression. While 
there were limits to the lengths ICC parties were willing to go 
to address U.S. concerns and interests--there was no 
willingness, for example, to consider revising the definition 
of aggression itself--ICC parties did accommodate United States 
concerns in important respects.
    4. ICC Priorities--The Kampala Conference was the first 
high-level meeting of the ICC Assembly of States Parties since 
the Rome Statute was adopted in 1998. It is notable that the 
parties were concerned primarily with expanding the ICC's 
jurisdiction to cover an additional crime rather than with 
considering ways of improving its ability to address 
effectively the crimes currently in the Court's mandate. The 
Conference gave only passing consideration to important 
practical obstacles currently faced by the ICC, including 
securing cooperation from states with ICC orders, gaining 
custody of persons charged with crimes, protecting victims and 
witnesses, facilitating evidence sharing and other legal 
assistance from states, and improving the efficiency of trial 
proceedings. The choice by the ICC parties to focus on 
aggression rather than on developing solutions to these 
challenges suggests that the parties were more concerned with 
the symbol of adopting an aggression regime than with the 
substance of building an effective institution. Absent greater 
focus on addressing these operational difficulties, the ICC may 
continue to struggle in carrying out its basic judicial 
functions.
          Annex--ICC Review Conference Decision on Aggression



                                  
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