Imagine a global court with the power to prosecute political and military officials who lead their countries into aggressive wars. The post- World War II tribunals at Nuremberg and Tokyo tried senior German and Japanese leaders for their egregious crimes of aggression; why not have a similar forum for the heirs of Hitler, Tojo and their like?
If dozens of governments have their way, the world may soon have just such a court. The 111 governments that are parties to the International Criminal Court — the permanent court at The Hague that now has the power to try cases of genocide, crimes against humanity and war crimes — are meeting this week in Kampala, Uganda, to take stock of the court's progress in the 12 years since its charter was adopted in Rome in 1998. Headlining Kampala will be an attempt to add a new crime to the ICC's jurisdiction, the crime of aggression.
In principle, the case for establishing a forum to check illegal uses of military force is a strong one, but it could spell disaster for the ICC. Tackling aggression would politicize the court, undermine its independence and limit the support from governments that is essential to its work. Worse, in the end, it would be unlikely to deter a single war.
The options for triggering the court's authority to investigate allegations of aggression are all problematic.
If the United Nations Security Council has the sole authority to refer aggression cases, the five permanent members with vetoes — the United States, Britain, France, Russia and China — would be able to assure themselves impunity. They would undoubtedly seek to extend their own protection to their allies, or trade votes to protect one another's spheres of influence, promising a highly political approach to aggression decisions.
It would be no better should the General Assembly have that power. It is already so highly politicized, split along geographic and other lines, that it would be unlikely to make referrals to the court solely on the basis of law. Nor is the U.N.'s International Court of Justice, despite its growth and promise in recent years, a good choice: It lacks the investigative competence to review claims of illegal use of force.
Finally, placing the power to investigate claims of aggression in the hands of the ICC's prosecutor — even with judges' approval — would undermine the court's independence and legitimacy. It would be buffeted by political attacks, adding to the charges of politicization it already fields and distracting from its historic role of bringing the worst criminals in international law to justice.
The court's very existence could be at stake. It if becomes a place for governments to argue about who was responsible for armed conflicts, ICC parties such as France, Britain and Canada may become disillusioned. Those who favor humanitarian intervention — for instance, to stop a genocide or bring assistance to a war-torn region — may back away if there is a chance that their action will be seen as contrary to a new rule against aggression.
And adding aggression to the court's jurisdiction would only strengthen its opponents in the United States, which is not yet a party to the ICC. They fear that a politically motivated prosecutor, without checks on his authority, could try to haul American political and military officials into court.
These may be cynical ways of looking at the issue of adjudicating aggression, but they are realistic. The ICC is a young institution, hardly tested in its core function of trying war criminals and those accused of genocide. It needs time to develop and prove its competence. It needs and deserves broader international support, especially from the United States, and the Obama administration has made it clear that it is willing to cooperate with the court in many areas.
For all these reasons, human rights groups around the world fear the implications aggression has for the ICC. The Open Society Institute, together with about 40 organizations from around the world, urged governments to postpone the discussions, while Human Rights Watch issued a report that, among other things, expressed concerns that pursuing jurisdiction over aggression could "diminish" the role of the court in international justice.
Many of the governments gathered in Kampala may have in mind the values and norms of the Nuremberg and Tokyo tribunals, but they should also ask themselves whether they are prepared to sacrifice the ICC's broad support and independence for the costly crime of aggression.
David Kaye directs the international human rights program at UCLA School of Law.