International Criminal Court and the Rome Statute: 2010 Review Conference

ICC Review Conference and U.S. Engagement

The International Criminal Court (ICC, or Court) was established in 2002 as the first permanent court to prosecute war crimes, crimes against humanity, and genocide (together, “ICC crimes”). Pursuant to a provision in the Statute of the International Criminal Court (“Rome Statute” or “Statute”), the States Parties to the Rome Statute agreed to review the Court’s activities seven years after its establishment. In compliance with this provision, the States Parties convened a Review Conference in Kampala, Uganda, May 31–June 11, 2010.

After declining to officially participate in the activities of the ICC or in the sessions of the Rome Statute’s Assembly of States Parties (ASP) since the Court was established in 2002, the United States shifted its stance and began attending ASP meetings as an observer in November 2009, signaling a new policy of engagement with the ICC. At the Review Conference, the United States participated fully as an observer.

Issues Considered at the 2010 ICC Review Conference

Proposals in the Review Conference’s agenda had broad possible ramifications for U.S. interests, and provided an opportunity for the United States to assess its policy toward the Court. Review Conference participants considered adding the crime of aggression to the ICC’s jurisdiction, which would allow prosecution of state officials for using armed force against another state. The United States opposed this proposal for a number of reasons, including the possibility that U.S. officials might be prosecuted for their decisions. These concerns parallel the U.S. concerns over the possible prosecution of U.S. officials and servicemembers for the other ICC crimes. The question of ICC aggression jurisdiction was the most contentious for the Review Conference. States Parties argued over two central issues for activation of ICC aggression jurisdiction:

• whether both aggressor and victim state consent would be necessary to grant ICC jurisdiction over an instance of alleged criminal aggression; and

• the extent to which the U.N. Security Council should control the Court’s exercise of aggression jurisdiction.

The States Parties adopted new jurisdiction provisions after several compromises, including delayed implementation and restricted application of the Court’s aggression jurisdiction, and allowing states to opt out of ICC aggression jurisdiction.

The Review Conference agenda also included a number of discussions assessing the effect of the ICC on international criminal justice, especially with regard to crime victims and affected communities, and States Parties’ cooperation with the ICC. During the Conference, the U.S. delegation demonstrated its new policy of engagement, pledging in-kind support for existing ICC cases and investigations, and for the development of States Parties’ judicial-system capacity to prosecute ICC crimes. U.S. officials have since expressed support for the ICC, stating that it is now the global focal point for international criminal justice.