A meeting in Kampala of delegates from signatory countries to the International Criminal Court, and to which the US - not a signatory - has sent an observer, is to consider whether the powers of the court should be extended to enable prosecution of state leaders for wars of aggression. As the Times reports, one of the worries about doing so is that it would politicize the work of the court; another issue is what body would initially determine whether aggression has taken place:
Adding the crime of state aggression to the ICC's remit "would be a significant step forward in the development of international law and an important extension of the court's jurisdiction", said Christian Wenaweser, president of the Assembly of States Parties to the ICC, meeting in the Ugandan capital.
He added that the Security Council should be the first body to determine whether state aggression had taken place. Some pressure groups think that this would compromise the court's independence. While the definition of what constitutes an act of aggression has been hotly contested, the key is who decides when the criteria are met. Human Rights Watch said that it had "long opposed control of any crime within the court's jurisdiction by external bodies because it would undermine the ICC's judicial independence".
Harold Koh, of the US State Department, argued that widening the court's remit "could divert the ICC from its core mission and politicise this young institution". The Foreign and Commowealth Office said Britain thought it too soon for the ICC to expand its role but that if this happened the assessment of acts of aggression should be made by the Security Council.
Two points strike me about this. That there is a genuine danger of politicization seems undeniable. One only has to think of the Iraq war: many (most?) opponents of the war take it for granted it was a war of aggression; and many (all?) of those who supported it don't. But I'm not convinced that a like danger doesn't attend the determination of the crime of genocide, already within the court's remit. And indeed - secondly - if the UN Security Council is the forum determining, in the first instance, whether aggression has taken place, how can these questions not be politicized? A veto-wielding country to vote on whether it is itself in breach of the newly-specified offence? One might think that the task could devolve to some other UN body. But you only have to take one look, or at least one unblinkered look, at the United Nations Human Rights Council to understand that this is no solution either.