The following is a commentary by Bukeni Waruzi, Program Manager for Africa and the Middle East, WITNESS, on the recent Review Conference of the Rome Statute.
The Review Conference of the Rome Statute held in Kampala, Uganda from May 31- June 11, 2010 aimed to make critical improvements to the statute on specific issues: to determine the crime of aggression and stocktaking of several areas of improvements to international criminal law. The areas included enforcement, co-operation, complementarity, peace and justice, impacts of the Rome Statute on victims and affected communities, etc.
I was lucky to attend such an important event in the history of international criminal justice, and I went there with deep hope and expectations. I expected the delegates to make profound improvements to the treaty establishing the International Criminal Court (ICC) and complete critical areas in it that remained incomplete since the Rome Conference establishing the Rome Statute in 1998.
The debates were both exciting and disappointing. Exciting to see how determined the delegates were to tackle toughest issues of international criminal justice such as the crime of aggression.
[For the purpose of the statute, “crime of aggression” means 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 character of the United Nations.]
The definition of the crime of aggression was agreed upon as well as some aspects of jurisdiction. But I was disappointed to see the delegates not able to compromise in a non-political manner on critical areas of discussion: jurisdiction of the crime of aggression and many of the compromises were superficial.
Notably, the main area of discussion was the crime of aggression. The discussions were heated and the politics were all over, as the saying goes “where politicians are debating it is just about politics more than anything else.”
Here is where the some disappointing compromises happened, which cannot guarantee the independence and the neutrality of the Rome Statute. For example, one of the compromises on the jurisdiction on the crime of aggression calls upon the United Nations Security Council to determine if there’s ground to believe that “an act of aggression” was committed. We all know the influence that powerful nations have at the Security Council and being itself a political body how will it effectively determine a commission of an act of aggression without political influence? Furthermore, the possible delay in the Council’s deliberations might impact the Prosecutor’s agenda especially in tracking evidence: witnesses may not be able to wait for longtime.
On this particular crime of aggression, non-state parties (States that are not part to the Rome Statute of the International Criminal Court i.e. which haven’t ratified and/or signed the Rome statute) were very active and influential in debates and were even able to get their resolution or understanding included. The USA, Russia and China were, at least this time, not very much divided and were able to influence the final resolutions on the jurisdiction on the crime of aggression. While they were fighting to get non-state parties out of the jurisdiction of the crime of aggression, at least it was accepted that only a state party can declare the non-acceptance to the crime of aggression.
Despite the power of the politics, we’ve come a long way from the Nuremberg tribunal and Tokyo military tribunal to the ad hoc tribunals for Sierra Leone, the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) to the ICC. International criminal justice has made real progress and the fight against impunity is on the agenda of all nations.
The Review Conference, which gathered 111 state parties to the Rome Statute and several other non-state parties, demonstrated the determination of the international community to make no tolerance on impunity.
As I was following the debates and the political negotiations to get resolutions passed, I came to the conclusion that politics are at play even in issues of criminal justice. And this made me question the real independence and the effectiveness of such a young institution like the ICC.
I had an overall optimistic point of view; the steps achieved at the Review Conference should not be underestimated; at least the states have fully compromised on the definition of the crime of aggression which means states can therefore start implementing it in their domestic jurisdiction. But, it’ll take time and real political will to get the entire issue of the crime of aggression resolved, certainly we’ll get there one day.