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!