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.

1 Comment »

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).

No Comments »