Van Schaack: Negotiating at the Interface of Power & Law: The Crime of Aggression

Beth Van Schaack (Santa Clara Univ. - Law) has posted Negotiating at the Interface of Power & Law: The Crime of Aggression. Here's the abstract:

Delegates from the International Criminal Court’s Assembly of States Parties, observer states, and non-governmental organizations recently convened in Kampala, Uganda, to hammer out amendments to the Court’s Statute that will lay the groundwork for the eventual prosecution of the crime of aggression. This achievement caps decades of negotiations that began in the post-World War II period. The perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression stems from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state - the putative aggressor state(s), the victim state(s), or all of the above - to have consented to the Court’s jurisdiction in some fashion before a prosecution could proceed. Although these two issues - the role of the Security Council and state consent - were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.

States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one - idealistic if not hopelessly naïve - seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another - more cautious - insisting that jurisdiction be premised on some manifestation of state consent. States in these two camps were natural allies against the permanent five members of the Council (P-5) - who wanted the Council to control aggression prosecutions. Nonetheless, this loose coalition struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala. For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council’s checkered history of responding to breaches of the peace. States that might otherwise have endorsed a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5.

In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements - one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely - in order to defeat one controlled by the Security Council. This concession attests to the extreme - if not irrational - antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in international relations.

This Article engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue and presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime that culminated in the Kampala negotiations. Part III provides a thick description of the arc of the most recent negotiations and recounts states’ recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law.