Departing from this agnosticism, Human Rights Watch (HRW) has a new report out, entitled Making Kampala Count, that takes a strong position against including the crime of aggression in the ICC Statute at all. In addition to offering a number of important recommendations for the stocktaking component of the upcoming ICC Review Conference in Kampala, HRW argues that:
We fear that inclusion of a definition and jurisdictional filter could diminish the court’s role—and the perceptions of that role—as an impartial judicial arbiter of international criminal law. Taking up prosecutions of aggression could link the ICC to highly politicized disputes, such as border incursions, territorial disputes, and secession movements supported by external state actors. Inserting the court into these disputes may well give rise to perceptions of political bias and instrumentalization—even if such perceptions are wholly unfounded. This, in turn, could damage the interested public’s trust in the court’s legitimacy and ability to address genocide, war crimes, and crimes against humanity.
The court’s work and credibility could also be damaged in situations where it does not take up an aggression prosecution. ... [E]specially with a complex jurisdictional mechanism, the operation of the court’s jurisdiction over the crime would be harder for the interested public to comprehend, especially in the country situations most affected by the alleged crime. ... Thus, situations could arise in which affected communities would have intense expectations for justice, but the ICC would be unable to act due to jurisdictional or resource restrictions. This is already a problem for the court in pursuing the core crimes already operational under its jurisdiction.
When it comes to the crime of aggression, then, the dangers of inaction are much like those of action: disappointing expectations, leaving communities feeling abandoned and disinclined to trust the other work of the court.
Moreover, there is a further risk to the court should it decline for whatever reason to take up a particular allegation of aggression: opportunistic and unscrupulous political leaders, seeking to advance their own national agendas, could exploit national dissatisfaction and undercut the court’s credibility both domestically and internationally.
In addition, under the leadership of the Open Society Justice Initiative, over 40 international NGOs (many from Africa from which all the cases before the Court hail) have sent a letter to the Foreign Ministers of members of the Court expressing concerns about the codification of the crime of aggression in the Rome Statute on the ground that it risks politicizing and overburdening the Court and undermining the integrity of the Rome Statute. The letter states in part:
It remains to be seen whether these voices will be heard in Kampala. One new development does not bode well: It has just been announced that there will be limited seating available to NGOs during the first week of the Kampala Review Conference (when the stocktaking is scheduled to happen), raising the ire of among others the Coalition for the ICC, which is coordinating NGO efforts in Kampala.
[A]ggression—a crime based on acts committed against a state—raises fundamentally political considerations about a state’s initial decision to resort to the use of force. The ICC’s other three crimes—war crimes, crimes against humanity and genocide—are violations against individuals for which legal remedies have long been available and clearly defined in international customary laws and treaties. ...
[A]sking the ICC to take on another category of crime at present risks overburdening the Court when it is still striving to prosecute and try those responsible for current crimes. Much work is needed to further improve the operation of the Rome Statute system in respect of cooperation, complementarity, the impact on victims and affected communities, and questions of peace and justice. ... Prudently declining to adopt an amendment on aggression at this time, when the Court has such urgent challenges to tackle, is the most effective way to strengthen an institution that is central to combating impunity, and ensuring accountability, for the most heinous international crimes. ...
Given the wide range of perspectives which currently exist on the aggression amendment, pushing it to a vote in Kampala risks undermining the cohesiveness of states parties that has been so essential to the Court’s establishment and
The NGO and Peoples' Space events schedules are available here.
Disclosure: I have been advising the U.S. government on the aggression negotiations and will be the academic advisor on the U.S. delegation in Kampala.