Originally published on the CGS blog on June 11, 2010.
By: Ariela Blatter
Shortly after the historic decision for the ICC to prosecute the crime of aggression, Harold Koh, Legal Advisor to the United States Department of State made a shaky statement from the floor. Overcome by either emotion or exhaustion at 1am here in Kampala, he spoke in a shaky voice, after a marathon 48 hours of negotiations. In his remarks he gave a window into the Obama Administration’s desire to map the course of the Court for the years to come. Reminding States Parties of its recent commitment to cooperate with the Court and the US eagerness to engage in taking stock of the courts progress, it foreshadowed a potential difficult battle ahead for ICC advocates. The US delegation, in agreeing with France and the UK, re-asserted its view of the primary role of the UNSC over aggression. The US asserted it was a wise decision today to defer the decision for the ICC to prosecute crimes of aggression to a later date (in seven years), when 2/3 of the state parties must convene again to decide whether or not to stick to the spirit of the amendments made here in Kampala.
Finally, the US warned that any “organic” decision-making of the Court through the normal channels of decision-making by the Assembly of State Parties would be a serious constitutional problem; any future decision-making on aggression must wait for the next big review conference. However, the US requested that upcoming regular meetings of the Assembly of State Parties consider future amendments “to strengthen the Rome Statute.” I sincerely hope that by requesting leave to consider future amendments to the Rome Statute before the next official review conference, the US does not use this opportunity to undermine the historic decision today to place the ICC as the first permanent international court to try individuals who have engaged in the decision and implementation of illegal wars. It is important to note that the US delegation made a significant victory here in Kampala, by inserting several clarifications to the Rome Statute, or “understandings” that in their view addressed their most serious concerns about the definition on aggression, and that it not impinge on their ability to enter into coalition military operations or humanitarian intervention.
