Saturday, April 24, 2010

U.S. Policy in Kampala: A New Report

The Council on Foreign Relations has recently released a report written by Vijay Padmanabhan of Yeshiva University’s Benjamin N. Cardozo School of Law (left) entitled "From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference." Yours truly served on the Council's Advisory Committee along with a number of other academics, practitioners, former government officials, human rights activists, and Council members.
The Report acknowledges the keen U.S. interests in an effective International Criminal Court but raises questions about the direction the aggression negotiations have taken to date. It also provides concrete suggestions to U.S. policymakers about how to contribute constructively to the negotiations and achieve their strategic aims at Kampala without appearing obstructionist or re-alienating other delegations.
As a first order of business, the Report recommends that the U.S. focus on dissuading state parties in Kampala from activating the aggression provisions. The concern is that these provisions will undermine the Court's core work in prosecuting atrocity crimes and threaten vital U.S. security interests in a way that will make U.S. cooperation with the Court, no less membership, more difficult. The Report cites a number of objections to the Court's assertion of jurisdiction over aggression. Namely:

Prosecuting aggression risks miring the court in political disputes regarding the causes of international controversies, thereby diminishing its effectiveness and perceived legitimacy in dispensing justice for atrocity crimes.
The aggression provisions also pose

unique risks to the United States as a global superpower. It places U.S. and allied leaders at risk of prosecution for what they view as necessary and legitimate security actions.


Adding aggression to the ICC’s mandate would also erode the primacy of the UN Security Council in managing threats to international peace.

Although the Report criticizes the existing definition of the crime of aggression (which has achieved a fragile consensus in draft Article 8bis) as too vague to serve as the basis for assigning individual criminal responsibility, it recommends against trying to offer even well-meaning "fixes" to the text on the ground that many states consider the issue to be "closed" after several rounds of negotiations.
The other main agenda item for Kampala is a stocktaking exercise to reflect on past experiences and offer guidance toward improving the functioning of the Court going forward. This stock-taking will focus on four main areas:

  • Victim Outreach
  • State Cooperation
  • National Prosecutorial Capacity
  • Peace & Justice
The Report recommends that the U.S. contribute actively to these discussions with an emphasis on the United States' past experience in these areas as well as potential future contributions, especially in the event that the United States achieves its aims at Kampala. In particular, Report emphasizes that the United States should commit to providing technical and financial support to national systems to improve the operation of the system of complementarity. In addition, the United States should make clear its intention to cooperate with the Court in terms of financial and technical support, political and military support in capturing suspects, and evidence gathering.
Finally, the report recommends that the United States send a cabinet-level representative to Kampala in addition to Stephen Rapp, the U.S. Ambassador at Large for War Crimes Issues (left), to signal our re-engagement with the Court and the importance of the negotiations, and to issue a formal statement of support to further undo the Bush Administration's more combative approach.
The Report is definitely worth a read. All the proposed amendments to the ICC Statute that will be under consideration can be viewed here.

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