ICC states strike deal on crime of aggression

Published by International Justice Desk (RNW)
14 June 2010
 
The biggest achievement at the two-week International Criminal Court review conference in Kampala, which ended this weekend, was the consensual agreement on the crime of aggression.

By David Rupiny in Kampala

"This is what I came in here to achieve and that is what we've been able to achieve," said Christian Wenaweser, president of the Assembly of States Parties that oversees the ICC.

The agreement came after many hours of wrangling among ICC member and non-member states, which had different views and stakes in the final outcome. From the outset the US, a non-member state, had pushed for consensus on the matter.

The compromise position of the agreement proposed that the United Nations Security Council ought to be notified of an act of aggression and refer the matter to the ICC prosecutor. Subsequently, the prosecutor would notify the UN Secretary-General of any cases of aggression with relevant information and documentation.

In force in 2017

The amendment on crime of aggression, Article 8bis, defines the crime as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.

The agreement would only come in force in 2017, a position that did not go down well with some delegates.

While the agreement is seen by some states as a watered down version of the Article, this latest agreement will give the ICC the jurisdiction to investigate and prosecute the crime of aggression, alongside other worst crimes – genocide, war crimes and crimes against humanity.

Long path towards agreement

The crime of aggression is in the Rome Statute, but its definition and exercise of jurisdiction was not concluded at the 1998 Rome Conference.

Many delegates to the Kampala Conference, therefore, had a heavy weight on their shoulders whether or not to reach an agreement on the matter.

Presenting his country’s position on the crime of aggression, the US State Department’s Legal Adviser Harold Hongju Koh pointed out last week that there was no consensus on a number of contested issues such as the amendment rule and jurisdictional filters and triggers. Thus, Koh argued, the debate over the crime’s definition and understandings and conditions needed to be deferred.

“To be a success, the Review Conference must provide a principled, workable system of international criminal justice that is consistent with existing international law and institutions, and fair both to victims of abuse and to individuals who may eventually be prosecuted for the crime of aggression,” Koh said.

Chair of the European Parliament Delegation, Richard Howitt of the UK, said that the EU countries would be making a historic mistake if they do not send out a strong message on the crime of aggression, adding that they would hold EU member countries to account if they failed to deliver.

In the second week, the delegates eventually agreed that the ICC should prosecute the crime of aggression. The agreement followed a compromise paper presented by Argentina, Brazil and Switzerland, which gained the acceptance of the US.

Impunity

One other key highlight of the Kampala Conference is the fact that more and more voices echoed the need to ward off impunity and entrench accountability.

Leading the pack of callers was the UN Secretary-General Ban Ki-Moon who declared that “the order of impunity is over and accountability has taken over”.

Ban Ki-Moon sent out a strong message: atrocities and heinous crimes cannot go unpunished and perpetrators must think twice. In order to achieve this, he added, there is need for full cooperation of all states. He called on those states that have not yet ratified the Rome Statute, which established the ICC, ought to do so as soon as possible.

His predecessor, Kofi Annan, had a similar message. He told the delegates not to lose sight of the solemn pledge when the ICC was established: that the most serious crimes must not go unpunished.

"The choice between justice and peace is no longer an option. We must be ambitious enough to pursue both, and wise enough to recognise, respect and protect the independence of justice. The future of international criminal jurisdiction is the Rome Statute of the International Criminal Court".

ICC president Sang-Hyun Song said since the 1998 Rome Conference, the system of international criminal justice has come a long way and is moving faster. Judge Song said the threat of prosecution at the ICC has already helped to deter some crimes.

In the run up to the Conference, Christian Wenaweser said the Kampala conference was not expected to make significant changes to the Rome Statute because the original document is still relevant. That is why, he said, the ICC has decided instead to focus on taking stock of its work and deal with issues like peace and justice, cooperation, complementarity and the victims.

The problem of Sudan

Other big wins were scored on the principles of cooperation and complementarity. The delegates were united in calling for increased cooperation among states parties.

Of special interest was the call for cooperation in enforcing the arrest warrant for Sudanese president Omar al-Bashir and Sudan’s non-cooperation in handing over two suspects in the Darfur case.

African states and its umbrella body, the African Union, came under the spotlight for failing to cooperate with the ICC over the Bashir case and denying the Court the opportunity to open up a liaison office in Addis Ababa.

Interestingly, the African working group could not reach any agreement on the Bashir case, but were unanimous on forging more ties with the ICC. Africa constitutes the biggest ICC bloc with 30 countries having ratified the Rome Statute.

The African delegates contended that since the idea of non-cooperation over the Bashir case was reached by the heads of state, it was better that those leaders spoke about the matter themselves in the forthcoming AU Summit in Kampala next month.

Sudan also blocked four human rights activists from traveling to the Conference. As they attempted to board the plane, they were detained and had their passports confiscated, suggesting Khartoum’s wariness.

A fierce critic of the African position is Richard Dicker, Human Rights Watch’s Director for International Justice programme. He reasons that the non-cooperation of African states with the ICC has the potential of breeding impunity instead of fighting the worst crimes.

Darfur

Meanwhile, a grouping of over 40 Darfuri and other western Sudan indigenous groups based in North America and Europe issued a statement urging state parties to strengthen the ICC so it carries its mandate effectively.

The Darfuris called for “clear and effective mechanisms for the execution of arrest warrants,” singling out Al Bashir and Ugandan rebel leader Joseph Kony as key suspects who must be brought to book.

A pro-Bashir group, the Sudan International Defence Group (SIDG), cried foul after the resort owners could not offer them space for their pro-Bashir campaign. They were forced to relocate their press conference in a hotel far away.

Erlinder’s arrest in Rwanda

The arrest in Rwanda of US lawyer Peter Erlinder also hovered over the Conference. The International Criminal Defence Attorneys Association (ICDAA) worked feverishly to highlight Erlinder’s plight and demanded for action.

“Professor Erlinder’s arrest is an attack on the freedom of speech and a politically motivated attempt to further frustrate the democratic process in Rwanda,” said Allison Turner, an executive member of the International Criminal Bar.

Erlinder, a professor at William Mitchell College of Law in Minnesota, was arrested on May 28th in Kigali on charges of genocide negation. He is the defence counsel for Major Aloys Ntabakuze, whose ICTR (International Criminal Tribunal for Rwanda) conviction is now before the Appeals Chamber.

Erlinder had gone to Rwanda because he has been retained by Rwandan opposition leader, Victoire Ingabire, the leader of the United Democratic Forces, who had been attempting to register her party and is under house arrest for allegedly denying the 1994 genocide.

Host country under fire

The host president Yoweri Museveni also found himself in an awkward position as there were increasing calls for the ICC to investigate and prosecute him.

Former UN Under-Secretary General for Children in War Situation Olara Otunnu met ICC chief prosecutor, Luis Moreno Ocampo, and presented a dossier of crimes Museveni and his regime have allegedly committed.

Otunnu, now a Ugandan opposition leader, urged the ICC to investigate Museveni over war crimes in northern Uganda and the Democratic Republic of Congo.

“I have already handed over to Ocampo some information and I will be handing more information and I urge other Ugandans to provide information regarding the massacres and impunity in northern Uganda and Congo,” Otunnu said.