The Bush Administration May Fear Prosecutions for the Crime of Aggression
In the end, though, it's not the rogue Lieutenant Calleys the Bush Administration is worried about - it's military personnel conducting what the Administration views as business is usual. For there is an argument that high-level military personnel who were in charge of the Iraq war committed the "crime of aggression" - which is punishable by the ICC.
So far, the crime of aggression, in this context, remains undefined. When the U.S. participated in the ICC Preparatory Commission (PrepCom) meetings, it consistently resisted broad definitions and broad jurisdiction. And the drafters of the ICC statute, unable to agree on a definition and process for prosecuting aggression, left that struggle to a later day.
How, then, would the ICC's reference to a "crime of aggression" likely be interpreted? Unfortunately for the Bush Administration, it would probably be in a way that would encompass the Iraq war.
Many of the countries at the PrepCom meetings favored the definition of aggression embodied in General Assembly Resolution 3314, passed in 1974 in the wake of the Vietnam War. It defines "aggression" as "the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."
Plainly, invasions that are neither sanctioned by the Security Council, nor undertaken in immediate self-defense (as the U.N. Charter allows), would count as "aggression." And the Iraq war was just such an invasion.
The situation couldn't be clearer: Despite its vast power, the U.S. feels trapped. Because its invasion of Iraq violated the U.N. Charter and defied the Security Council, it opened itself to a potential war crimes prosecution. Now, to avoid such a prosecution, it is forced to lose allies or potential allies - such as the 35 countries it abandoned and alienated - and to delay or impede important goals such as protecting peacekeepers.
Meanwhile, the U.S.'s own soldiers are in danger, dying every day in Iraq, and the U.S.'s past decision to flout the U.N., and invade in the first place, is doubtless harming its ability to protect even its own. It needs U.N. help for political cover, even though it threatened the U.N. with "irrelevance" before the war.
The United States should apologize for its misguided Iraq war, end its occupation, allow the U.N. to take over with a multilateral peacekeeping force, and lend its wholehearted support to the ICC in the future. If it does not, it will only find itself repeatedly hamstrung by its own lawbreaking.
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