The Road to Kampala: U.S. Participation in the Review Conference of the International Criminal Court

The UCLA School of Law's International Justice Clinic has published a report on The Road to Kampala: U.S. Participation in the Review Conference of the International Criminal Court. The authors are six third-year law students - Daniel Antalics, Yasmin Elhady, Emily Keehn, Stephanie Montaño, Manisha Munshi, and Lindsey Zwicker. They were advised by the Clinic's director - David Kaye. Here's the executive summary:

On May 31 – June 11, 2010, the first Review Conference of the Rome Statute for the International Criminal Court (ICC) will take place in Kampala, Uganda. Hundreds of delegations from around the world will seek to define the crime of aggression and its jurisdictional conditions and evaluate the progress of the ICC since its inception. In a sharp departure from recent U.S. policy, the United States – even though not a State Party to the Rome Statute – will go to Kampala, sending a delegation likely to include high-level officials from the State Department, Pentagon and other agencies.

The Road to Kampala provides an overview of key issues and recommends achievable goals for the United States. Based on research by UCLA School of Law’s International Justice Clinic, we recommend:

• Genuine Engagement. The U.S. delegation should contribute to the Review Conference by expressing U.S. views on substantive matters and hosting side meetings to discuss U.S. policy and State cooperation. To encourage Congressional buy-in, Congressional staff should be invited to join the Review Conference delegation.
• Crime of aggression. To the extent possible, the U.S. delegation should avoid a hard-line stance rejecting the consensus definition. The delegation should engage, as it already is doing, and if necessary support a piecemeal approach of adopting components of the crime while deferring jurisdiction to a later negotiation. This is preferable to an “all or none” strategy, which might jeopardize the broader U.S. effort to reengage with the ICC.
• Proposed amendments. Consistent with U.S. policy, the delegation should support the Belgian proposal to expand certain war crimes to conflicts of a non-international character. The United States should actively engage in the newly established Working Group to deal with other proposed amendments that will not be on the Kampala agenda.
• Cooperation with the ICC. The United States has taken the positive step of offering to meet with the ICC Chief Prosecutor to determine where its contributions would be most useful. While mindful of restrictions and authorities in U.S. law, the U.S. delegation should publicly commit to cooperating with the ICC and identify specific areas where U.S. cooperation is likely to be most forthcoming.
• Enforcement of arrest warrants. The United States should find opportunities to share its valuable experience with arrests from its participation in ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). Rather than merely commenting during the stocktaking, the U.S. delegation should host a side meeting at the Review Conference and offer to hold technical meetings with interested governments on enforcement mechanisms.
• National Accountability. The U.S. delegation should be forward-leaning on the issue of “complementarity.” Even though ICC investigation of U.S. actions is unlikely, the United States should ensure that its domestic law would merit scrutiny under the Rome Statute, providing jurisdiction to investigate and prosecute all ICC crimes. The U.S. delegation should also offer technical support to help build the capacity of various States’ national accountability mechanisms.