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Aggression Outlawed!

Magical thinking at the International Criminal Court.

Aug 23, 2010, Vol. 15, No. 46 • By JEREMY RABKIN
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Of course, previous American administrations had said the same about “war crimes” and “crimes against humanity”—that Americans don’t commit such crimes—but were still unwilling to embrace the ICC. President Clinton declined to sign the treaty establishing the International Criminal Court for nearly two years. When he finally signed, in December 2000, he said he still thought the new institution needed more safeguards before he could support ratification by the Senate. After 9/11, the Bush administration became more worried about ICC second-guessing of American war measures. So the Bush administration notified the United Nations that it was no longer contemplating ratification of the ICC treaty—in effect, rescinding Clinton’s signing. In 2002, Congress enacted the American Service Members’ Protection Act, authorizing the president to use all means, up to and including armed force, to prevent any American from being extradited to the ICC. Among those who voted for this measure was the junior senator from New York, Hillary Clinton. 

The Obama administration, however, soon changed course. In its first weeks in office, it announced that it was “reviewing” the U.S. stance toward the ICC. In August 2009, on a visit to Kenya, Hillary Clinton, now secretary of state, said it was “a great regret” that the United States had not joined the ICC. “But we have supported the court,” she assured university students in Nairobi, “and [we] continue to do so.” The result at Kampala does not seem to have generated any second thoughts. 

Harold Koh claimed, in his post-Kampala press briefing, that the negotiations had “reset the default on the U.S. relationship with the court from hostility to positive engagement,” and the outcome “demonstrates again [that] principled engagement can protect and advance our interests  .  .  .  and make for a better court, better protection for our interests, and a better relationship going forward between the United States and the ICC.”

In principle, the court’s new jurisdiction over aggression rewrites the U.N. Charter and implies the most fundamental change in the structure of international affairs since 1945. But it’s complicated and won’t go into effect for at least seven years, so, as the State Department sees it, there’s no need to disrupt an emerging consensus now. As far as anyone could tell from the news reporting, nothing at all had happened in Kampala—just one more talk-fest on the international conference circuit, not worth trying to analyze. The American media yawned and moved on. 

Undoubtedly the Foggy Bottom version of magical thinking helps to explain this reaction: If we don’t make a ruckus over an international consensus, our diplomacy has achieved “constructive engagement”—even if the emerging consensus is hostile or dangerous to American interests. Perhaps the media simply followed the administration’s cues. Or perhaps they were lulled by their own magical thinking: Like health care reform and deficits and debt burdens, the expanded jurisdiction of the ICC is not important, so long as its consequences can be put off until Obama’s second term or somewhat later.

But it is important now. Two current examples make the point: The United States is relying on missile strikes in Pakistan to disrupt the Taliban networks attacking Afghanistan from cross-border sanctuaries. At Kampala, the United States essentially went along with a definition of “aggression” under which such strikes are criminal acts. Meanwhile, the Obama administration still claims, at least officially, that military action might be in order to prevent Iran from obtaining nuclear weapons. Under the Kampala definition, a preemptive attack would also be a crime. 

When is it lawful to use force?

The Kampala conference did not invent the idea that aggressors should be subject to international prosecution. The German and Japanese war leaders were prosecuted for this crime at the Nuremberg and Tokyo tribunals in 1945 and 1946. So, when delegates convened in Rome in 1998 to negotiate the treaty establishing a permanent international criminal court, they readily agreed that, like those postwar tribunals, it should have jurisdiction over the crime of aggression. But the delegates could not agree on its definition. Instead, they bracketed the reference to aggression in the text, agreeing that this jurisdiction would not be activated until a later conference could settle the definition of the crime. 

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