The order of impunity is over and the order of accountability is taking over, United Nations Secretary General Ban Ki-Moon told delegates at the first review conference of the International Criminal Court that opened today in Kampala, Uganda.
By: David Rupiny
The opening speeches at the conference have been about the future of the court and how the court should be the keystone of international justice.
Ban Ki-Moon sent out a strong message: atrocities and henious 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 and that those states that have not yet ratified the Rome Statute that establised the court ought to do so as soon as possible. Universal support for the Rome Statute would lend credibility to the ICC and enable it to become the centrepiece of international justice, he said.
The UN Secretary-General said time has passed when the international community thought of peace and justice as separate, adding that the two must be dealt with together. The Rome Statute presents the best opportunity for peace and justice, he said, and its positive impacts will be felt around the world.
Former UN Secretary-General, Kofi Annan, said the conference must not lose sight of the solemn pledge when the ICC was established: that the most serious crimes must not go unpunished.
Annan also stressed the importance ofa parallel pursuit of justice and peace. "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 protesct the independence of justice. The future of international criminal jurisdiction is the Rome Statute of the International Criminal Court".
He said the questions of credibility will persist so long as three of the five permanent members of the Security Council, countries that aspire to permanent membership and some embers of the G20 refuse to reconsider their position and join the Assembly of States Parties.
"There must be no turning back, no slowing up in our journey," Annan said.
ICC president, Judge Sang-Hyun Song said since the 1998 Rome Conference, the system of international criminal justice has come a long way and is moving faster.
To date 111 countries - the latest being Bangladesh - have ratified the Rome Statute. These include all the countries in Latin America and the European Union, 30 African countries and a number of Asian states.
The ICC is dealing with five situations in the Democratic Republic of Congo, Northern Uganda, Central African Republic, Darfur and Kenya. Two trials are ongoing, with the third expected to start this July.
Judge Song said the threat of prosecution at the ICC has already helped to deter some crimes, though more still needs to be done.
He reminded states parties that they should not negate their primary role of investigating and prosecuting crimes and should only turn to the ICC when they fail. He also stressed that whenever the ICC comes in, the states parties must offer it their full cooperation especially in the execution of warrants.
President of the Assembly of States Parties to the court, Ambassador Christian Wenaweser, told reporters on Friday that the ICC is now a functioning justice system that is dealing with the most serious crimes under international law.
Wenaweser said the Kampala conference will not make significant changes to the Rome Statute because the original document is still relevant. That is why, he added, 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.
ICC chief prosecutor, Luis Moreno Ocampo told the gathered delegates that the Kampala review conference will ensure that states parties guarantee the rights of the victims and show how the law is implemented in real life.
He echoed Ban Ki-Moon's position that the order of impunity is over and that no military commander or leader will be beyond reach, adding that the ICC is casting its shadow over all 111 states parties and beyond.
"ICC is a successful institution"
The current challenges faced by the Rome Statute are not a product of failure, they are a product of success...the Court is today fully operational, executing its judicial mandate and far exceeding expectations," Ocampo said.
The prosecutor pointed out that the ICC will not allow political considerations in the execution of its work and has forced political actors to adjust to new legal limits and avoid impunity.
As heads of states from Uganda and Tanzania and several African government officials listened, Ocampo said the ICC will prevent the type of violence seen two years ago in Kenya following disputed presidential elections.
Citing Darfur and northern Uganda, Ocampo said it is important that compensation and assistance to victims are integrated with development efforts and should not await justice.
The president of Tanzania, Jakaya Kikwete, was the only one who raised the issue of crime of aggression - one of the major amendements to the Rome Statute under review at the conference. He said it is important that the conference find a way of resolving the issue of crime of aggression in the Rome Statute.
"We may not wish away the crime of agression and find a way of resolving it. Let's have an agreement or let the court to figure its own way of dealing with the crime of agression," he said.
Kikwete pledged his country's support towards the proposed definition and exercise of jurisdiction of the crime of aggresion, adding that Tanzania will support all efforts in streamlining the crime of agression in the Rome Statute.
Interestingly, Uganda's President Yoweri Museveni, did not mention anything on the crime of aggression. Uganda and Rwanda twice invaded the Democratic Republic of Congo and questions still persist whether the invasions were justified or not.
President Museveni instead suggested that in international law there is a need to differentiate between a just and unjust conflict and the methods involved there-in.
He agreed with Ocampo on the immediate compensation of victims, saying it is important that assistance comes even or not there is justice.
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Search for the general and specific definition of the crimes of aggression
The adoption of the crime of aggression into the Rome Statute and reaching consensus on definition of the crime of aggression are the main goals of the International Criminal Court Review Conference held from May 31 to June 11, 2010 in Kampala, Uganda.
A proposed definition of the act of aggression (“the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”) is appropriate for international or inter-state aggressions.
However, the recent tragic war and war crime experiences from the former Yugoslavia (more precisely: Croatia, Bosnia-Herzegovina and Kosovo), Rwanda, Darfur, Chechnya, Iraq and other countries show that crimes against peace and crimes of aggression can happen within the borders of the same sovereign state.
In the case of an ethnically and religiously complex states, an act and crime of aggression can commit an individual or group of people who have oversight over the armed forces, police, intelligence and other forces of repression.
If the crime of aggression were defined as proposed (taking military action against another state), then Pol Pot, Slobodan Milosevic, leadership of the Yugoslav Army and Idi Amin could have gone on massacring “the others” in their sovereign states in fair confidence that they would not be ousted.
In Europe and the world there are still many ethnically and religiously complex states in which they may appear undemocratic regimes, and genocidal movements, which can commit crimes against peace and crimes of aggression within the sovereign state.
Precisely because of the complexity of the problem of the war crimes in the modern world (in our opinion, the rhythm of war crimes has this sequence: a crime against peace, crimes of aggression, war crimes, crimes against humanity and genocide), it is very difficult to find a simple, generic, general definition of the crime of aggression.
Instead of searching for a single definition for crimes of aggression, the solution should be found different varieties and types of aggression: international and domestic.
Of course, a problem in the search for consensus in defining aggression is a well known fact that there are numerous cross-cultural differences in defining terms. As an individual could well be a terrorist in one country and a freedom fighter in the other one, a military intervention for members of one ethnic group could be an act of aggression, while other group could see the intervention as a heroic move of armed force to preserve national unity.
Finally, in defining the act and the crime of aggression, participants of the Kampala Conference should ensure the legitimacy of international military operations aimed at the prevention of humanitarian disasters such as, for example, was the NATO intervention in Bosnia and Herzegovina and Kosovo.
For all these reasons we hope that the participants of the Review Conference at the end will find a suitable and useful definition of the crime of aggression.
It would be ideal but not realistic, that the idea and definition of the crime of aggression would be accepted by the major powers that were at the conference in Uganda observers: U.S., China and Russia.
Dr. Slobodan Lang and dr. Slaven Letica, University of Zagreb
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