Live session completed.

On 12 June 2010 shortly after midnight, the first-ever Review Conference of the Rome Statute concluded in Kampala, Uganda. After a week of high-level discussions on the impact of the Rome Statute to date, ICC states parties came to an agreement regarding amendments to the Rome Statute pertaining to the crime of aggression.

States parties adopted a definition for the crime of aggression by consensus. The definition criminalizes the use of armed force by one State against another and carried out in contravention to the United Nations Charter. On this basis individuals responsible for unlawful acts of war may be subject to prosecution before the ICC. States also agreed upon a jurisdictional regime for the crime of aggression, which provides separate procedures depending on whether the situation was referred by the UN Security Council, or whether it came before the Court through a State referral or upon the ICC Prosecutor’s initiative. The Review Conference determined that the Court will not be able to exercise jurisdiction until 30 states have ratified the new amendment. In addition, states parties will have to make a positive decision to activate the jurisdiction after 1 January 2017.

‘The Coalition for the ICC is advocating for an end to impunity for all serious crimes, including the crime of aggression,” said CICC Convenor William R. Pace. “Although today’s agreement on the definition of the crime is a step forward for international justice, and more importantly for victims of this crime, the conditions agreed by states for the prosecution of the crime would leave many states out of the reach of justice,” he emphasized. “There also remains a question mark over when the Court will be able to exercise its jurisdiction over this crime of concern to the international community as a whole,” he added. “The Coalition is committed to work with like-minded-governments and other bodies to maintain the pressure on the UN Security Council of its very heavy responsibilities with regard to the crime of aggression.”

Important decisions were made on two other proposed amendments to the Rome Statute. First states agreed not to delete article 124 but to review it in five years. Article 124 is an optional protocol which allows states not to subject their nationals to the Court’s prosecutions or investigations over war crimes for a seven year period. Second, states accepted to extend the use of certain weapons as war crimes in non-international conflicts.

The Review Conference also helped identify areas in which the Court’s positive impact can be further strengthened. Debates focused on the impact of the Rome Statute on victims and affected communities, complementarity, cooperation, and peace and justice, issues truly central to the system’s fair, effective, and independent functioning. More than 600 Coalition members played a central role in enhancing the dialogue on the Rome system and ensured that the voices of civil society were truly heard through a number of events.

The Coalition and its global membership are committed to work to maintain the momentum with states, the UN, other regional bodies and the ICC to ensure commitments made in Kampala result in concrete actions.

There is no doubt that the success of the ICC is closely linked to the level of cooperation it secures from States Parties and intergovernmental organizations. We have seen that arrest warrants cannot be enforced and requests of provisional release - as in the case of Jean-Pierre Bemba - cannot be accepted because of the lack of cooperation from the States that could be host states for the defendant. States can also cooperate by implementing the Agreement on Privileges and Immunities of the Court in their national legislation, by signing agreements for the relocation of victims and witnesses or by enforcing sentences.

The Review Conference of the ICC Rome Statute in Kampala was a unique opportunity for states to reaffirm their commitments and obligations towards the Court under the Statute. In Kampala, the stocktaking exercise on cooperation showed that beyond capacity or resources, a number of states simply lack political will to cooperate with the Court, especially when it comes to enforcing the arrest warrants issued by the Court.

In the speech he made at the opening of the Review Conference, former UN Secretary General Kofi Annan referred to the opposition of some African leaders to the arrest warrant issued against Al Bashir and said, “It is not ‘Africa’ that is hostile to the Court. (…) In all these cases, it is impunity, not the African countries, that is being targeted.” If impunity is actually the problem that has to be eradicated, why are not all arrest warrants against all suspects wanted by the Court enforced and why cannot justice be achieved?

Uganda, which is a State Party to the Court and was the host country of the Review Conference, has been unable to arrest the leaders of the LRA so much that this rebel group continues to commit atrocities in the Democratic Republic of Congo, in Central African Republic and in South Sudan. Nevertheless, it will host the next African Union summit in July. What would prevent Uganda from arresting Sudanese President Al Bashir if he was to show up on the Ugandan territory? It is interesting to note that Uganda, after declaring that Al Bashir was not invited to the summit, immediately retracted its statement when the Sudanese government protested.

The DRC, which is a State Party to the Court and set an example in terms of cooperation regarding enforcement in dealing with the arrest warrants issued against Lubanga, Katanga and Ngudjolo Chui, decided not to cooperate to arrest Bosco Ntaganda, claiming “peace” was more important. The Congolese minister of Justice recognized that there is no peace without justice but that “the need for peace sometimes prevails over justice”.

States tend to cooperate only when they want to or when it does not hinder their interests or goals. Cooperation should not be partial or depend on the moods of decision-makers. Cooperation should be firm and consistent in order for the Court to be able to fully complete its mandate to end impunity. It is the commitment states should have made back in Kampala.

Eugène Bakama Bope is the President of the Congolese NGO Club des Amis du droit du Congo(CAD).

NGOs Say Meeting is an Opportunity to Reconfirm Commitment to Justice for the Gravest Crimes

More than 500 NGO representatives will attend the first ever Review Conference of the Rome Statute of International Criminal Court (ICC), to be held in Kampala (Uganda) from 31 May to 11 June 2010. Kampala is an opportunity for world leaders and the global community to openly recommit to the Rome Statute’s historic initiative to end impunity for the gravest crimes.

In less than 10 days, ICC states parties and observer states, international organizations, NGOs, and other participants will discuss proposed amendments to the Rome Statute - the ICC’s founding treaty - and take stock of its impact to date, making the Review Conference a critical milestone in the evolution of the new system of international justice created twelve years ago.

“Kampala is not only a conference for amendments to the treaty,” said CICC Convenor William Pace. “This historic gathering will also help identify areas in which the Court’s positive impact can be further strengthened.” Debates will focus on the impact of the Rome Statute on victims and affected communities, complementarity, cooperation, and peace and justice, issues truly central to the system’s fair, effective, and independent functioning.

For the Conference to have a greater impact, it requires attendance of the highest levels and participants to recommit to ensure justice for victims of genocide, crimes against humanity, and war crimes, including by making a tangible pledge. The Coalition urged states to use Kampala as an opportunity to publicly commit ratifying the Rome Statute or the Agreement on Privileges and Immunities within the shortest timeframe. States were also called to pledge to pass necessary ICC implementing legislation following the Conference.

One of the key issues at stake will also be the crime of aggression. Although aggression is listed in the Rome treaty as one of the four grave crimes over which the ICC has jurisdiction, agreement must still be reached on its definition, conditions for the ICC to exercise its jurisdiction, and ways to modify the treaty. “The CICC will monitor the discussions on the crime of aggression very closely to ensure that any amendment would protect the integrity of the Rome Statute,” said CICC Convenor William Pace.

Other amendments to be considered by states parties are: (1) the revision of article 124 of the Rome Statute, an optional protocol which allowed states to exclude the court’s jurisdiction over war crimes by its nationals or on its territory for a seven-year period, and (2) the possible inclusion of the use of certain weapons as war crimes in the context of an armed conflict of non-international character or “Belgian proposal”.

Parallel to official panels, the Coalition and its global membership will help create further dialogue on the Rome system and ensure that the voices of civil society are truly heard through a number of debates, roundtables, and parliamentary seminars prior to and during the Conference, both in capitals and alongside the Review Conference.

* Excerpts from an Op-ED published in the Jamaica Gleaner on 11 April 2010 at http://www.jamaica-gleaner.com/gleaner/20100411/focus/focus5.html

“An interesting aspect of the history of the Statute of the International Criminal Court (ICC) is that, although the idea of an international criminal court was raised from as far back as the period after World War I, the modern genesis of the topic was a proposal made in 1989 by Trinidad and Tobago at the General Assembly of the United Nations. [...] When the item was introduced in 1989 by Trinidad and Tobago the reception in the Sixth Committee and the General Assembly was lukewarm. But when the Yugoslavia conflict broke out in 1991 the Europeans came aboard and pressed for the establishment of an international criminal court.

[...] The ICC Statute, adopted in 1998, has now been ratified by 110 States. Within the Caribbean the Statute has been ratified by Trinidad and Tobago, Antigua and Barbuda, Barbados, Belize, Dominica, Guyana, St. Kitts and Nevis, St. Vincent and the Grenadines and Suriname. In 1998 I signed the Final Act on behalf of Jamaica and in 2000 Jamaica signed the Statute, but has not yet ratified it. Nor has Bahamas, Grenada, St. Lucia.

I suggest three reasons for Caribbean States to ratify the Statute of the ICC.

First, the main purpose of the Court is to ensure that serious breaches of international criminal law and international humanitarian law do not go unpunished. We in the Caribbean have a history that has made us all to familiar with impunity in respect of atrocities that today would readily qualify as crimes against humanity. The inhuman and degrading practice of slavery carried out in the West Indies for over two centuries should prompt all Caribbean countries to support an institution whose primary function is to put an end to impunity for serious crimes.

Second, a cornerstone of the Court’s Statute is international human rights, including the protection of the rights of the accused. Caribbean countries have always been at the forefront in the struggle for human rights and have a strong history of valuing human rights. We are not new to the business of defending human rights. Jamaica was among the first set of countries, if not the first, to enact legislation imposing trade sanctions against apartheid South Africa. [...] The Caribbean Westminster Model Constitutions provide for the protection of fundamental human rights, including the rights of the accused. Generally, the Caribbean can take pride in the system of parliamentary democracy that it has followed over the last five decades. Moreover, Caribbean countries, which have fought for their independence, and therefore, value their sovereignty, need have no fear of the I.C.C.

The greatest contribution that the ICC has made to the international community is the principle of complementarity entrenched in its Statute. The Court will only exercise jurisdiction where a national state is unwilling or unable to do so. Therefore, we can continue to deal with serious crimes within our own countries. But joining the ICC will allow us to be more engaged in the international legal and diplomatic community, working together to prosecute the most serious crimes in countries where the rule of law is lacking and rogue leaders fragrantly violate human rights. Caribbean countries were once the scene of the most horrifying human rights abuses known to humanity, and it is therefore, our historical and moral responsibility to do whatever we can to make sure that the darkest chapters of human history are not repeated on other shores and in other lands. [...] ”

Judge Patrick Robinson is the current President of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY)

The Kenyan Section of the International Commission of Jurists welcomes the decision of the International Criminal Court’s Pre Trial Chamber to authorise an investigation into the situation in Kenya with regard to crimes against humanity committed during the December 2007 - January 2008 post election violence.The decision represents a new dawn in the search for accountability for the post election violence and the fight against impunity.

However ICJ Kenya cautions that this is just the beginning. It is at this juncture that the real challenges to realising justice for victims of international crimes arise. We urge the country to be alive to these challenges.

We urge all actors in the process to support the Court in its quest for justice and accountability by actively co-operating with the ICC in the course of investigations and eventual prosecution.The state is obliged under domestic law through the International Crimes Act to provide assistance to the Court in all aspects of its investigations.

The Pre Trial Chamber decision reaffirms that the ICC operates on the principle of complementarity which means that states, including Kenya, have the primary responsibility to investigate and prosecute crimes under the Rome Statute. This means that the Kenyan government still has a crucial role to play and should not view the decision as an excuse to dispense with its responsibility under the Statute.

Further, the decision brings to the fore the issue of Witness Protection which has not been sufficiently addressed through existing legislation and available mechnisms. Yesterday’s decision calls for more urgency on the part of government to put in place urgent measures to protect victims and witnesses.

In addition, the ICC prosecutor envisaged a three pronged strategy to deal with impunity in Kenya:

1. ICC Prosecution for those bearing the greatest responsibility;
2. A Special Tribunal for Kenya to deal with mid to lower level perpetrators of the post election violence and;
3. A credible truth, justice and reconciliation process to address historical injustices which contributed to the underlying triggers of violence.

ICJ Kenya calls for full cooperation and active engagement with all these components of accountability. In the words of our national anthem : ‘Justice be our shield and defender’!