IJCentral: International Justice Central

Eldoret North MP William Ruto’s application asking International Criminal Court (ICC) judges for fresh investigation into post-election violence was received at the registry in The Hague.

Mr Ruto’s lawyer Katwa Kigen produced copies of the application signed by ICC courtroom official Felipe Rojas Ceballos on December 8, who confirmed he had received the electronic version at 14.30 hours.

He produced the documents after The Standard asked about claims by ICC legal outreach official, Dr Fadi El Abdallah, that they had not received the application.

El Abdallah had said the ICC was not aware of any public filing about of the application by Ruto to the court.

But in response, Kigen said he personally delivered the application to the court, which acknowledged receiving the papers.

“I met Felipe and Esther Obat at the ICC registry and gave them the documents for delivery to the judges for directions as to the filling,” said Kigen.

The lawyer also produced a follow up letter he wrote to the Registrar on December 10 telling the court that he had filed the application two days earlier.

“We refer to the application presented to the Registry on December 8 by the undersigned, and duly acknowledged and enclosed is a scanned copy of the acknowledgement,” said Kigen in the letter.

According to the letter, the lawyers enclosed the complete application together with scanned enclosures and demanded to know the directions the pre-trial chamber had made in respect to the application and its urgency.

Kigen, requested information about the leave sought by the applicant that he intends to provide the court with an alternative view as provided under rule 103 of the ICC rules.

“The applicant proposes to provide the court with alternative views of great value, considering the prosecutor’s conduct on the situation in Kenya has in effect failed to investigate exonerating evidence in relation to the applicant and also failed to afford him an opportunity to present the exonerating evidence he has,” said the letter.

Ruto argued that ICC Prosecutor Luis Moreno-Ocampo has acted and continues to act unprofessionally, unprocedurally and unlawfully in disregarding his mandate towards the applicant in respect to the post-election violence.

Kigen further tells the court that repeated statements by Moreno-Ocampo that he had concluded investigations on post elections violence in Kenya were manifestly ineffective, limited in scope, poorly directed and a display of lack of commitment to gather relevant information and evidence.

In his presentation, the lawyer summarises what he says are breaches in the Kenya National Human Rights Commission and the Waki reports and requests that the applicant be allowed to make written and oral submissions on them.

“The prosecutor has denied the applicant the opportunity to offer exonerating evidence by not giving him prior notice before questioning as required by article 55(2)(a), and also failed to inform him that he is a suspect and affording him reasonable time to respond with adequate particulars,” said Kigen.

He said Moreno-Ocampo had did not inform Ruto that he was being treated as a suspect prior to being questioned and unfairly, unlawfully and unprocedurally ambushing him with the information during an interview on November 4.

“In the meeting, the prosecutor kept shifting and altering his requirements from the applicant, either out of lack of clarity on his part or by design to confuse and mislead applicants so gravely to make them not respond to his ultimate application for indictments,” says Ruto.

source: The Standard

To mark International Human Rights Day 2010, AMICC conducted an exclusive interview with US Ambassador for War Crimes, Stephen Rapp. The Ambassador was in New York as a lead part of a US delegation to the 9th session of the ICC’s Assembly of States Parties meeting at the United Nations. Watch the whole series below!

At the 9th session of the ICC’s Assembly of States Parties meeting at the United Nations, the United States spoke as a non-state party in support of the work of the Court.
The Ambassador spoke to the success of the Review Conference in Kampala, Uganda, and reminded the assembly that the United States has worked in a cooperative manner with other states to achieve important decisions on stocktaking and other aspects of the Review Conference. At the end of his speech, Ambassador Rapp spoke passionately about the importance of the ICC. “We owe to all of humankind,” said Rapp, “to make the institutions of international and national justice so effective that individuals will be deterred from committing acts of genocide, war crimes, and crimes against humanity.”

source: AMICC

Kenya could descend into violence worse than the 2008 post-election crisis unless rampant corruption in the ruling elite is tackled, the US ambassador to Kenya has warned in a report to Washington.

Michael Ranneberger’s cable, written in January, is scathing about efforts to reform the political system in the country. “While some positive reform steps have been taken, the old guard associated with the culture of impunity continues to resist fundamental change,” he wrote.

That culture has existed since independence, he said, adding that President Mwai Kibaki, prime minister Raila Odinga and “most members of the cabinet and leaders of the political parties” are part of it.

He cited, but did not name, “a person at the Kenya Anti Corruption Commission ... [who] blocks progress on high-level investigations and has ties directly to State House. He also described a senior policeman as having close links with the president but “allegedly closely associated with the ‘kwe kwe’ death squad responsible for extrajudicial killings.”

“Failure to implement significant reforms will greatly enhance prospects for a violent crisis in 2012 or before – which might well prove much worse than the last post-election crisis,” he wrote.

In 2008, chaos followed the release of election results which many claimed were rigged by the government. About 1,500 people died in the ensuing violence and more than 300,000 were forced to flee their homes. After weeks of talks between Kibaki’s ruling party and Odinga, the opposition leader, a deal was struck which left Kibaki as president and made Odinga prime minister. However, most of Kenya has remained a divided society, with thousands of people still unable to return to their homes and very little justice for the perpetrators.

Describing Kenya as an important strategic partner of the US, Ranneberger described the battle against the ruling elite as a game of chess. “While we are no mean chess players ourselves, it is very difficult to anticipate their next move or the motives behind ‘reform’ steps.”

He said that although “the grip of the old guard political elite on the levers of state power and resources remains largely intact, hairline fractures are developing in their edifice which – if we continue to work them intensively – will develop into broader fractures and open up the potential for a peaceful process of implementation of fundamental reforms.”

Meanwhile, other documents, which indicate how closely the US is watching China’s rise in Africa, claimed Beijing was providing military and intelligence support to Kenya with the help of a corrupt official. A 17 February memo from the US embassy in Nairobi said China was providing weapons to Kenya “in support of its Somalia policies”, and computers and telecommunications equipment to the Kenyan National Security and Intelligence Service (NSIS).

The memo said that, in January, China provided “weapons, ammunition, supplies, and textiles for making uniforms” via the Chinese military import-export corporation Catic. The goods were to in support of the GOK’s Kenya’s “Jubaland initiative”, Jubaland is being the southern-most Somali province on the borderng with Kenya.

In August last year, a telephone monitoring equipment contract was awarded to a Chinese company, the cable claims. It alleged the deal was done after the Kenyan telecoms company was pressured to do so by the intelligence services.

The cable goes on to allege that one senior intelligence service officer received kickbacks from the Chinese company while on a visit to China. Another “received monthly payments of over $5,000 [£3,000] from [the Chinese company] which were used to pay medical bills.”

The memo’s conclusion made clear the potential for antagonism between America and China, which has been multiplying its investment in Africa in return for mineral resources. “Collaboration between the USG [US government] and China in Kenya should be approached cautiously as there appears to be little dovetailing of our interests to date,” it said.

The Chinese government was criticised for not addressing the “reform agenda”, which was essential to Kenya’s future stability and prosperity. “The GOC [government of China] turns a blind eye to the flooding of the Kenyan market with Chinese counterfeit goods, such as batteries, which directly damage US market share here; and the GOC has not demonstrated any commitment to curb ivory poaching.”

The cable said China’s involvement in Kenya was expected to grow given its strategic location. “If oil or gas is found in Kenya, this engagement will likely grow even faster. Kenya’s leadership may be tempted to move ever closer to China in an effort to shield itself from western, and principally US, pressure to reform.

“Given the possibility of a backlash by the Kenyan people against China, perhaps over the issue of imported Chinese labour or mishandling of natural resources, there may be benefits to keeping our distance, at least publicly, from China.”

Another memo, from the US consulate in Lagos, Nigeria, on 23 February this year , was even more blunt in its assessment of the potential rival superpower.

Apparently based on a conversation with Johnnie Carson, the US assistant secretary of state for African affairs, it said: “China is a very aggressive and pernicious economic competitor with no morals. China is not in Africa for altruistic reasons. China is in Africa for China primarily.”

It warned of “trip wires”. “Is China developing a blue water navy? Have they signed military base agreements? Are they training armies? Have they developed intelligence operations?

“Once these areas start developing then the United States will start worrying.”

In the meantime the US will would continue to push democracy and capitalism, in contrast to “Chinese authoritarian capitalism”.

Referring to the Zimbabwean and Sudanese leaders respectively, the cable said: “The Chinese are dealing with the [Robert] Mugabes and [Omar al-]Bashirs of the world, which is a contrarian political model.”

Kenya government spokesman Alfred Mutua described the bribery allegations as “preposterous and out of sync with reality”. “Allegations of money being given for medical purposes are baseless,” he said. “We can only conclude that the cable was based on assumptions or manufactured analysis and have no bearing as far as we can ascertain.”

source: The Guardian

The prosecutor of the International Criminal Court says he has opened an investigation into possible war crimes by North Korea.

The prosecutor says his office is looking at the Nov. 23 shelling of Yeonpyeong Island and the sinking of South Korean warship the Cheonan in March.

South Korea in 2002 signed the international treaty that created the war crimes court. The prosecutor said in a statement Monday that gives the court jurisdiction over crimes committed on South Korean territory.

It is hard to imagine a more evil man than Joseph Kony, the Ugandan warlord who heads the Lord’s Resistance Army (LRA), and President Obama’s new strategy for rooting him out has won praise from US activists who campaigned vigorously for “the humanitarian use of force” in the region. In a letter to Congress last week, the president promised to “apprehend or remove from the battlefield Joseph Kony and senior commanders” of the LRA. Yet the “disarmament” approach contains little that is new, risks fanning the dying embers of the LRA, and perpetuates US efforts at geopolitical steering of Africa.

The LRA’s indiscriminate violence terrorised civilians in northern Uganda for two decades, before spilling into southern Sudan, the Democratic Republic of Congo and the Central African Republic. Kony and his principal henchmen have been indicted by the International Criminal Court and placed on America’s list of international terrorists.
Yet, the conflict in northern Uganda was highly complex. Rooted in the immense difficulty of reconciling the interests of several pre-colonial southern kingdoms and smaller, clan-based polities in the north, it was exacerbated by tensions between the central governments of Uganda and the Sudan, which have both supported insurgencies in each other’s territories. None of this justifies Kony’s warlordship, which, while citing the marginalisation of Acholi people as its rationale, specialises in murder, mutilation and abducting women and children and forcing them into sexual and military slavery.

Ugandan government counter-insurgency operations were correspondingly harsh. They included the internment of 1.8 million civilians in “internally displaced persons” camps that had shockingly high mortality rates. Many Ugandans – including two candidates in the 2011 presidential elections: former UN under secretary general Olara Otunnu and Democratic party leader, Norbert Mao – insist that atrocities were committed on both sides. Some argue that the conflict enriched senior Ugandan army officers, who dipped their fingers in the war chest and hoped to steal the land of interned peasants, and deliberately prolonged the war for that reason.

Such complexities are not recognised by US pressure groups, which were hugely successful in mobilising bipartisan support for an LRA Disarmament Act passed by Congress in May. NGOs such as Invisible Children, which organises mock abductions on American campuses, have helped to make crushing the LRA a fashionable cause among well-meaning activists, bloggers and journalists.
Not all of these are well-informed. A UC Berkeley professor noted in a recent web post that several of his students, who were Invisible Children activists at high school, appeared not to know that the civil war in Uganda was over, and that the overwhelming majority of “internally displaced persons” have returned home.

Kenneth Roth, executive director of Human Rights Watch, was also calling for Kony to be brought to justice last month in a Foreign Policy magazine article that suggested that local armies lack the equipment and skills needed to apprehend the villain – the implication being that America should send in a posse. This is distinctly chilling coming from the head of the world’s most influential human rights organisation. If it’s OK to send in a special forces hit squad to take out Kony, why not also take out all the other, in some cases equally vicious, rebel groups in Central Africa? Why not, even, put the whole continent under US military command?

Obama’s strategy is thin on detail and does not rule out US boots on the ground, but he is unlikely to go that far. Yet, in order to achieve “removal of Joseph Kony and senior LRA commanders from the battlefield”, the strategy makes a “multi-year commitment” to provide “enhanced logistical, operational and intelligence assistance in support of regional and multilateral partners”.

But America has already tried this: $23m went in logistical and intelligence support for Operation Lightning Thunder, starting in December 2008. This joint Uganda-DRC offensive aimed to rout the LRA remnants, estimated at some 250-strong in their then hideout in the Congo’s Garamba Forest. It was a dismal failure, succeeding only in splintering and scattering those remnants to loot and pillage in Sudan and the Central African Republic, while also straining fragile relations between Uganda and DRC.

Future missions involving four states with prickly relations will be even more diplomatically and logistically daunting. The indictments against the LRA appear, though, to rule out non-military options. With the door closed on negotiation, efforts to corner Kony on a “battlefield” that spans four countries are likely to press him into further acts of murderous bravado.

As scholarly studies (pdf) have shown, many northern Ugandans themselves favour a negotiated settlement with traditional reconciliation mechanisms. So, even if Kony is killed soon, western campaigns for retributive justice and an end to impunity may end up prolonging and spreading the very violence they deplore.
In some lights, American support in mopping up the LRA is a payback for Uganda’s contribution of (US-trained) peacekeepers in Somalia. A more sinister interpretation is that the US, whose defence budget is now higher than at any point during or since the cold war, is gearing up for “strategic” competition with China in Africa, seizing opportunities to strengthen military alliances. There appears, at least, to be a broad convergence of interests between old-school hawks, who believe the only safe world is one dominated by American power, and young idealists who find Kony to be the perfect hate figure.

He is an evil brigand, and there would be widespread rejoicing if God struck him down with a thunderbolt. But America should not be playing God.

source: The Guardian

ELDERS and opinion leaders in Arua have accused some members of the UN Security Council of frustrating the operations of the International Criminal Court by refusing to join it.

Specifically pointing out the United States of America, Russia and China, the leaders accused these countries of applying double standards and precipitating the cycle of violence in weaker nations.

“These countries are shunning the ICC because they are behind most of the violence in the world. They make and distribute the guns used for committing genocide and crimes against humanity,” Joram Ajeani, Uganda’s former envoy to the DRC, said.

“The ICC is the court for victims of heinous crimes and vulnerable people. Anybody who commits crime against humanity must stand trial,” the 64-year-old added. He was speaking as a plenary discussant during a two-day national peace building film festival held at Arua Christ The King conference hall.

Dozens of people attended the festival, which ran on Saturday and Sunday. It was the fourth film festival of “Beyond Juba, A Transitional Peace Process.”

Under the Refugee Law Project of Makerere University’s Faculty of Law, Human Rights and Peace Centre, the festival’s aim was to generate debate on violence using documentaries, and to gather public opinion.

Jackie Budesta Batanda, the senior communications officer of the project, said the main issues raised are used to develop policy papers for advocacy.

She said they want to explore people’s experiences, find avenues for conflict resolution and build national consensus on peace-building.

Flanked by Annelieke Van De Wiel, the project’s transitional justice lawyer, the duo called on Parliament to pass the draft National Reconciliation Bill so that a forum can be created to discuss and address the causes of violence.

The participants expressed differing opinion on the issue of ICC versus traditional justice systems for conflict resolution, but agreed that the most influential world powers had paralysed the ICC.

“ICC now is a toothless barking dog, even if you give it meat, it cannot chew it,” commented Joseph Noah Drasi who used Thomas Lubanga of DRC as an example to drive his point home.

He said peace building is a collective responsibility but victims of violence need to forget the pain of forgiving the perpetrators of violence in order to have a sustainable peace.

While proponents of the traditional justice system said it is the best system for conflict resolution, critics said that it could be a recipe for more violence by encouraging impunity.

Solomon Ayiko, the director of Peace for All International, an NGO involved in peace building and conflict resolution activities said the ICC provides an opportunity to develop globally acceptable norms and establish global authority to stamp out impunity.

source: New Vision

Mr Luis Moreno-Ocampo, the International Criminal Court prosecutor, will ask judges to be allowed to present his case in open court, meaning that chaos suspects and the case against them could be unmasked before year-end.

Mr Moreno-Ocampo is expected to go before judges on December 15 to ask them to indict prominent personalities for their alleged role in the post - poll violence.

Before that, a meeting of ICC member countries ICC is to be held in Nairobi next week as The Hague’s investigations draw to a close.

Another high-profile meeting led by chief mediator Kofi Annan will be held in the city as well, as the ICC begins the process of deciding whether to try post-election violence suspects.

He had wanted to present the case in private to avoid hurting the individuals whom he wanted indicted.

However, given the circumstances surrounding witnesses and leakage of a confidential letter from the ICC, it is understood he will go for open submissions so that individuals accused of involvement are known.

This, said sources familiar with ICC work, was to ensure the public and civil society put pressure on the government to hand over the suspects once the arrest warrants are issued.

Mr Moreno-Ocampo secured the court’s decision to start investigations in the Kenya case after Parliament failed to vote for setting up of a local tribunal to try the suspects.

He has said he would present two cases against “four to six” suspects. Though his office has not confirmed the dates, most court watchers believe it will be in mid-December.

The State Parties grouping is the ICC’s top decision making organ and brings together all the 114 nations which have signed the Rome treaty.

Its meeting next Wednesday will discuss ICC’s role and the need for countries that have ratified it to cooperate. A day after, the Panel of Eminent African Personalities chaired by Mr Annan, a former UN secretary-general, will sit for two days assessing the coalition government’s record nearly three years after it was formed to end the blood-letting that followed the disputed December 2007 presidential election results.

Last year, the ICC was represented at the first assessment meeting in Geneva, Switzerland by Ms Beatrice Le Fraper du Hellen, then head of the Jurisdiction, Complementarity and Cooperation Division.

Sources said one of the issues that will be handled by both meetings would the progress in the investigations of the politicians, civil servants and businesspeople suspected of planning and financing the chaos and the need to have them take responsibility for their roles.

Last week, via a video recording, Mr Moreno-Ocampo said he was tying up two cases of suspects who will be drawn from both the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). The prosecution of the cases, he said, will ensure that poll-related violence will not occur again in future.

“We’ll prove that some leaders from both parties, both sides, were abusing the loyalty of their communities to attack others,” he said.

In the video shot on Monday and played to journalists attending a two week course on covering the ICC yesterday, Mr Moreno-Ocampo said he has a case against six individuals, two of whom are said to be senior civil servants, considered as the most responsible individuals from both sides of the coalition government for the post-election violence.

“For the last months we were collecting evidence to present the case before the judges who will review our application and decide,” he said.

“The crimes committed were serious,” the prosecutor said. “They were not just crimes against one community or Kenya; but crimes against humanity and justice has to be done.”

Before coming to demonstrate to the government and the public the international expectations that the suspects must be punished, the ICC team will head to New York this week to meet UN officials and to explain the next steps they will take regarding the Kenyan case, sources said.

The ICC and Mr Annan have voiced concern at the way the investigations have been handled especially intimidation and witness bribery claims.

source: Daily Nation

NEW YORK—As the trial of former Congolese vice president Jean-Pierre Bemba Gombo begins today in The Hague, the Open Society Justice Initiative is launching a monitoring website to provide daily updates and expert commentary on the proceedings.

The website’s reports and background are meant to be a resource for journalists, while the blog format provides a space for people interested in the trial to comment and debate. Content is available in English and French.

“With the Bemba trial taking place thousands of miles away from the Central African Republic, we want to make sure that news of the proceedings reaches affected communities—even if local papers can’t afford to keep a correspondent in The Hague,” said Alpha Sesay, legal officer for the Open Society Justice Initiative. “This trial is a landmark achievement in victims’ quest for justice.”

This is the International Criminal Court’s first case about the Central African Republic, and its first trial to focus so squarely on gender-based crimes. Thousands of people were killed, raped, or displaced during the brutal conflict in the Central African Republic from 2002 to 2003.

“It is critical that Bemba receive a fair trial so we can learn the truth of what happened,” said Sesay. “Bemba will have an opportunity to tell his side of the story, as will survivors of these atrocities who have waited years to be heard.”

Bemba is the highest profile defendant to come before the International Criminal Court (ICC) thus far, and faces charges of war crimes and crimes against humanity. The prosecution claims that Bemba should be held responsible for rape, murder, and pillage committed by troops allegedly under his command during the conflict. Bemba has pleaded not guilty.

Visit www.bembatrial.org to learn more.

The Open Society Justice Initiative also monitors the Charles Taylor Trial at the Special Court for Sierra Leone and the Thomas Lubanga Trial at the ICC.

“We have come a long way from Nuremberg, and have miles to go before we sleep.”

Hope is the engine that drives human endeavour. After some 20 million people were killed in World War I, League of Nations diplomats recognised the need to eliminate war as an instrument of national policy. They advised that future wars of aggression should be punished as an international crime. The common response from powerful states was: “The time is not yet ripe.”

An additional 50 million victims perished in World War II. In response, an International Military Tribunal was set up in Nuremberg to try German leaders responsible for crimes against peace (aggression), crimes against humanity, and war crimes. The implementation of slowly emerging principles of international criminal law by distinguished jurists from four victorious powers (the United States, the United Kingdom, the Soviet Union and France) was an expression of hope that future illegal war-making
might be deterred.

The main architect for the trials was Robert M. Jackson, on leave from the US Supreme Court. “It is high time,” he reported to President Harry Truman in 1945, “that we act on the juridical principle that aggressive war-making is illegal and criminal. [...] We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

In December 1946, the United Nations affirmed the Nuremberg principles and judgement. Committees were directed to draft a Code of Crimes Against the Peace and Security of Mankind, including the crime of aggression, and to plan for a permanent international criminal jurisdiction to try offenders. The rule of law, coupled with the humanitarian aspirations articulated in the UN Charter, would, hopefully, lead to a more peaceful and humane world order. That was the hope

The UN, of course, could not exist in a political vacuum. Promises of universal disarmament and the creation of an international military force were unfulfilled. The five permanent Security Council members, which had borne major burdens of the war, were entrusted with maintaining the peace. Each was granted the right to veto any enforcement measures. It soon appeared that sharp ideological differences divided the Council, whose members seemed primarily concerned with protecting their own powers and interests. Realpolitik was alive and well, and thriving. The veto-wielding powers in the Council proved unable “to save succeeding generations from the scourge of war.” Economic and cultural disparities among an expanding array of new nations exacerbated difficulties in what seemed like an ungovernable world.

The 1946 mandate to define the crime of aggression was finally approved by the UN General Assembly on December 14th, 1974, as Resolution 3314. To achieve consensus, last-minute clauses were inserted to the effect that the definition was only a non-binding guide to the Security Council, which was given wide latitude to determine whether an act of aggression had indeed occurred. It was agreed that “a war of aggression is a crime against international peace,” but exculpatory clauses were added, and the whole package was declared indivisible. In effect, the consensus definition was carefully crafted to preserve the status quo. Nonetheless, it reflected the undying determination and hope of many nations that illegal warfare could – at least to some extent – be curbed by law. It was a first baby step forward.

A code of international crimes was completed in 1996 by the 34-member International Law Commission that favoured the original Nuremberg definition. One hundred eighty-five nations, with varied legal and social systems, formed UN committees to fashion a permanent international criminal tribunal. Hundreds of open questions were left to be resolved during a final four-week conference of plenipotentiaries in Rome in the summer of 1998. In an unforgettable climax, after the official time had expired, Chairman Philippe Kirsch announced that the Rome Statute for an International Criminal Court (ICC) had been approved by acclamation of 120 in favour, seven against and 21 abstentions. The then UN Secretary-General, Kofi Annan, called it “a gift of hope to future generations

Until the final session, it was uncertain whether the ICC would be authorized to exercise its jurisdiction over the very contentious crime of aggression. Powerful states were unwilling to give up their power, and states that lacked power could do nothing about it. A last-minute compromise was accepted, where aggression would be listed as one of the four core crimes, although the ICC could not exercise its jurisdiction over that crime until and unless certain specified conditions could be met. There would have to be an acceptable definition, as well as clear confirmation that UN Charter provisions (meaning Security Council rights) would be respected. The Rome Statute was ratified, and went into effect on July 1st, 2002. Special Working Groups of the Assembly of State Parties (ASP) set out to meet the requirements for
activating ICC jurisdiction over “the supreme international crime.”

A Special Working Group laboured long and mightily to meet the preconditions laid down at Rome. Progress was made on a revised definition, but agreement on the role of the Security Council was nowhere in sight. When the Review Conference began in Kampala, Uganda, on May 31st, 2010, an improved definition clarified the distinction between the crime of aggression by an individual – which required a manifest violation by a leader – and an act of aggression by a state in violation of UN Charter prohibitions. New hurdles were added by requiring agreement by 30 states, and approval by at least two thirds of all parties before an amendment would become binding. No one could be tried for aggression until 2017 at the earliest – at which time the ASP would consider the matter further

The Rome Statute is a voluntary contract in treaty form entered into by consenting states. These states were not obliged to be bound by anything that they did not accept. To reassure nations that did not want to be bound, the amendments adopted in Kampala stipulated that State Parties can elect in advance not to be subject to aggression charges. Those that are not ICC members will automatically be excluded from the Court’s jurisdiction unless the Security Council decrees otherwise. Obviously, these constraints will seriously limit the reach of the ICC over the crime of aggression. As a concession to those who oppose any Security Council involvement, it was also stipulated that, if the Council fails to respond to the Prosecutor’s request for a ruling on aggression “within six months,” the Prosecutor can proceed with an investigation; provided such a course of action is approved by the entire pre-trial panel of at least six judges. Clarification of some of the ‘elements’ of an act of aggression, as well as a few ‘understandings’ were added to encourage the acceptance. When a weary Assembly President, Ambassador Christian
Wenaweser, announced, after midnight on the morning of June 12th, 2010, that a consensus had been reached, the applause may have reflected relief that the conference had ended on a positive note, rather than an expression of complete satisfaction by all those present. No one doubted the heroic efforts
of the Chairman and Secretariat, but the limited results left much to be desired.

Dwelling on shortcomings is counterproductive. So what to expect for the future? The prevalent paltry excuse that aggression had not been defined has now been eliminated. Giving the ICC jurisdiction over the crime of aggression remains on the political agenda – even if the time frame is imprecise. The arguments against criminalizing military aggression were shown to be lacking in persuasiveness what they made up in profusion. The allegation that the crime of aggression would overburden the Prosecutor was rejected. So too the contention that the Prosecutor – bound to act only on the basis of law, and subject to strict judicial controls – would be politically motivated. That concern seemed particularly ironic coming from the nations that dominate the Security Council. The truth is that powerful nations sought plausible excuses, because it would seem too absurd to argue that they preferred war to law.

The world and their own citizens pay dearly in blood and treasure for such short-sighted intransigence. How many millions more must die in uniform or as innocent civilians before the time is ripe to bring criminals before the bar of justice? Allowing aggressors to remain immune from prosecution by the
ICC surely does not deter illegal war-making, but rather encourages it.

To be sure, the long historical record of glorifying war causes many doubts about the utility of trying to alter the way that people think about such vital issues. Scepticism may be understandable, but it does not justify inaction. Unavoidable temporary shortcomings should not obscure progress and the need for change. International criminal courts were inconceivable just a short time ago; today, they exist to punish outrageous crimes committed in various parts of the world. Deterrence is more important than punishment.

The ICC’s authority to try perpetrators of genocide, crime against humanity and major war crimes –without prior Security Council consent – was left untouched (and hence reconfirmed) in Kampala. Aggression remains in the Statute as a recognized and confirmed international crime. If the Security Council fails to determine whether armed force by a state has violated the UN Charter, then the ICC need wait only six months before it launches its investigation. No one can persuasively repeat the canard that aggression is not punishable simply because it is undefined.

True, the ICC must wait until after 2017 before it can again consider including aggression within its active jurisdiction, but this time may be used constructively on other fronts. The powerful ‘court of public opinion’ should be heard. Many states have already recognized that armed might in the nuclear-cyberspace age, may be not only genocidal, but also suicidal. Hopefully, countries, in ever-increasing numbers, will ratify the Kampala amendments on aggression, and enact domestic legislation making aggressive war a punishable crime over which they have priority jurisdiction. As the national nets criminalizing aggression spread, aggressive states may have to rethink their willingness to attack their neighbours. They may yet look to the ICC as a more trustworthy body to decide the fate of individual aggressors. It will be up to today’s youth and tomorrow’s visionaries to propagate and hold high the banner of truth that law is always better than war. It is a message that many leaders have yet to learn.

*Benjamin B. Ferencz was a prosecutor at the Nuremberg war crimes trials, and has been a lifetime advocate of the international rule of law and the establishment of an International Criminal Court.

This article originally appeared in Global Brief. World affairs in the 21st century