Dominik’s earlier post calls attention to a very important event, the ICC’s Review Conference which starts today in Kampala, Uganda. The agenda for the conference includes a stocktaking exercise, including discussion of the impact of the Rome Statute system on victims and affected communities; and, issues of peace and justice, including managing the challenges of integrating justice efforts and peace processes. Amendments to the Rome Statute include the possible deletion of article 124, which allows for a seven years opting-out from the Court’s jurisdiction, amendments to article 8 on war crimes, and the introduction in the Statute of the definition of the crime of aggression.
Let us start with the last point. Many have expressed doubts whether it is the right time for the ICC to include such a politically loaded article in its Statute. To those doubts I would add another, namely whether Uganda is the right place where to introduce such an article, since this country in all likelihood committed an act of aggression against the Democratic Republic of the Congo not so long ago. But as the saying goes, let bygones be bygones. The fact that matters here is that there is never going to be a good moment to introduce this crime into the Statute. The political charge it contains is never going to go away. Waiting for a better moment largely compares to waiting for Godot.
Article 124 allows a State upon becoming a party to the Rome Statute to declare that for a period of seven years after the entry into force of this Statute, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. There is no reason why this article should be retained in the Statute.
After the ICC has been operational for 8 years it is indeed time to look at whether Article 8 needs any amendments. A small suggestion I have, seen the recent actions against peacekeepers, is that not only attacks against peacekeepers are prosecuted under Article 8, but also kidnapping and other serious acts of interference with such missions which put the lives of the peacekeepers or their mission at risk.
Something which might need to be addressed by this conference is also the inherent link between the responsibility to protect and international criminal justice dispensed by the ICC. The ICC has jurisdiction over all crimes which are listed under the principle of responsibility to protect, namely genocide, war crimes, crimes against humanity and ethnic cleansing. After all, it should not be forgotten that it is the mission of the ICC to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes which threaten the peace, security and well-being of the world.
Will two weeks be enough to discuss thoroughly all the problems that the ICC has faced and is facing after 8 years of its existence? Probably not, despite the fact that a lot of preparatory work has been done beforehand. In any case, what a considerable number of the 111 countries member to the ICC need to do asap is to pass the necessary domestic legislation which allows them to comply with their obligations under the ICC Statute. There is no better pledge they can make to the ICC. Anything less than that would turn complementarity on its head!
I largely agree with your assessments. Of course the expectations vested in the ICC are high (and have been so ever since the idea of creating an international criminal court gained momentum) and thus there is a strong desire to build further on this project. I have to say, however, that many of the problems that have revealed themselves over the last couple of years do not so much bear witness of deficiencies or shortcomings in the system established by the Rome Statute (perhaps with the exceptions of the lack of a definition of the crime of aggression and the retention of Art. 124) but rather are of a political nature. You mentioned one in the domestic implementation and adherence to the standards set up by the Rome Statute. Another is the – shall we say – unfortunate (deliberate or not) selection of cases/situations by the prosecution (e.g. the focus on Africa). At the same time I wouldn’t necessarily say that these issues are overly problematic. I am confident that they will be solved over time and they couldn’t have been avoided from appearing anyway. They are the children’s diseases of a rather young institution. What I am rather more interest in with regard to Kampala is the productive dialogue – and the fruits of that dialogue – between the many actors that pushed for the creation of the ICC in the first place. I am particularly thinking of the input from NGOs.
I’m afraid I don’t share your optimism, albeit moderate, but I’m open to being nicely surprised. I’m afraid that the issue of victim participation in the ICC remains problematic and needs to be properly addressed. There are other important topics too which need to be addressed asap such as State cooperation and the implementation of domestic legislation to incorporate the ICC Statute.
I’m not sure I share the same view with you in billing shortcomings in the work of the ICC to the fact that it is a young institution. While the ICC is young, international criminal justice is not, and many issues have been tested already by other courts. So, more attention should have been paid to that.
On a last note, I’m afraid the ICC needs to be careful in its dealings with NGOs. While I truly and highly appreciate the input of certain NGOs that have the necessary capacity to contribute, being labelled an NGO Court might cause the ICC problems in vital areas such as State cooperation.
I truly hope that constructive and productive dialogue between the participants in Kampala is going to result in the strengthening of the ICC, and international justice more generally.