The United States, Syria, and the International Criminal Court: Implications of the Rome Statue’s Aggression Amendment

In August 2013, President Obama advocated military intervention by the United States in response to President Bashar al-Assad’s alleged use of chemical weapons in Syria. President Obama further announced that he would seek congressional authorization for the attack and that he was comfortable pursuing this course of action without United Nations Security Council approval. While subsequent diplomatic developments have rendered U.S. military action against Syria less likely, the crisis in Syria remains a powerful example of situations that raise difficult questions about efforts arising under international law to curb states’ use of force abroad. Such unilateral action may have fallen under the International Criminal Court’s (“ICC”) working definition of the crime of aggression. To date, the United States has declined to join the ICC. The main tension in international law I note in this essay concerns the ramifications of the U.S. government ratifying the Rome Statute of the ICC (“Rome Statute”), the court’s underlying treaty. If subjected to ICC jurisdiction, then American political and military leaders, including the President, could become vulnerable to indictment, prosecution, and punishment by the court for interventions such as the one President Obama proposed. If it were a party to the Rome Statute, the U.S. government would expose its political and military commanders to such prosecutions. Those who support the United States joining the ICC, many of whom also support U.S. intervention in Syria, must acknowledge and resolve that tension.

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