ICC Prosecutor; OcampoOn 30 May, 2010, war victims organized a match at the Nelson Mandela National Stadium, Namboole near Kampala in which the UN secretary General Ban Ki-Moon and Uganda’s president, Yoweri Museveni participated. The conference ended on 11 June 2010, but before closing, the delegates were allowed to watch the first world cup game on large screens at the people’s Space, close by the conference centre. They resumed the session after the match.
The conference proper took place between May 31 and June 11. Delegates from 111 state parties to the 1998 Rome Statute; non-state parties like the United States of America, NGOs, and others discussed proposed amendments to the Rome Statute and assessed its impact to date. The ICC was set up in Rome in 2002. It was agreed to review it after 7 years. Uganda applied and was granted the right to hold the review conference. It took place between 31 May and 11 June 2010.
About the Review Conference
During this period, states party to the International Criminal Court (ICC) met in Kampala, Uganda for the first Review Conference of the ICC. The purpose of the Conference was to evaluate the ICC, and make it more effective in prosecuting the world's most horrendous criminals. Those who attended discussed the Court's past and future, and proposed changes to the Court's founding treaty, the Rome Statute.
Nations such as the United States that participated in the Rome Conference and signed its Final Act had the opportunity to take part in the Conference and its preparatory meetings as observers and had their voices heard. Those that have ratified the Rome Statute and make up the Court's governing body, the Assembly of States Parties (ASP), were able to vote on the proposals.
The following issues were on the agenda:
o A legal definition of the crime of aggression, and a discussion of the ICC's jurisdiction over the crime;
o Stock taking of the ICC's performance thus far;
o A review of Article 124, which allows nations to postpone ICC jurisdiction over war crimes; and
o An amendment to the Rome Statute proposed by Belgium.
The Review Conference had the potential to dramatically change the ICC. Those who attended as observers and the 111 ASP members did not only determine how the ICC will function in the future, but also influence the struggle for global human rights.
The ICC at a Glance
The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is based on a treaty, signed by 111 countries.
The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes.
In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.
The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.
The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.
The international community has long aspired to the creation of a permanent international court, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.
In the 1990s after the end of the Cold War, tribunals like the International Criminal Tribunal for the former Yugoslavia and for Rwanda were the result of consensus that impunity is unacceptable. However, because they were established to try crimes committed only within a specific time frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed.
On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court.
The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries.
The conference deliberated on the rights of people during war times. It sought to arrive at amendments that increase the vigilance of the ICC on crimes against humanity, protect and ensure justice for victims of war, and make the court more active on prosecuting crime of state aggression.
The ICC is currently handling war crimes and crimes against humanity from various countries, including five from Africa. In Africa alone, the ICC is investigating five key cases but has so far convicted none.
The cases being investigated by the ICC are atrocities allegedly committed by the commanders of the Lord’s Resistance Army in Uganda and during the post-election violence in Kenya. Other cases include the alleged war crimes committed by Congo’s ex-Vice President Jean Pierre Bemba, alleged war crimes by Sudan President Omar El-Bashir and the case of Thomas Lubanga, the former leader of a militia group accused of war crimes in the civil conflict in DR Congo.
In his opening speech, the UN secretary General, Ban Ki-moon, called on African nations to co-operate with the ICC by arresting fugitive warlords against whom the court issued arrest warrants. He said the old era of impunity is over and a new age of accountability was setting in slowly but surely.
As if in defence of his government and army, President Yoweri Museveni of Uganda challenged the conference to define “just” and “unjust” wars, freedom fighters and terrorists. He argued that one might fight a just war but use terrorist tactics to achieve freedom of people.
At the end of the conference the crime of aggression was defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation. With a lot of bullying from the United States of America, a non state party and invited as observer, the conference failed to give the ICC jurisdiction over the crime of aggression until 30 states have ratified the new amendment. In addition, States Parties will have to make a positive decision to activate the jurisdiction after Jan.1, 2017.
Summary of Conclusions from the Review Conference in Kampala
On 11 June 2010, the Review Conference of the Rome Statute concluded in Kampala, Uganda, after meeting for two weeks. Around 4600 representatives of States, and intergovernmental and non-governmental organizations attended the Conference.
Amendments to the Rome Statute
The Conference adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. The actual exercise of jurisdiction is subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
The Conference based the definition of the crime of aggression on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, and in this context agreed to qualify as aggression, a crime committed by a political or military leader which, by its character, gravity and scale constituted a manifest violation of the Charter.
As regards the Court’s exercise of jurisdiction, the Conference agreed that a situation in which an act of aggression appeared to have occurred could be referred to the Court by the Security Council, acting under Chapter VII of the United Nations Charter, irrespective as to whether it involved States Parties or non-States Parties.
Moreover, while acknowledging the Security Council’s role in determining the existence of an act of aggression, the Conference agreed to authorize the Prosecutor, in the absence of such determination, to initiate an investigation on his own initiative or upon request from a State Party. In order to do so, however, the Prosecutor would have to obtain prior authorization from the Pre-Trial Division of the Court. Also, under these circumstances, the Court would not have jurisdiction in respect to crimes of aggression committed on the territory of non-States Parties or by their nationals or with regard to States Parties that had declared that they did not accept the Court’s jurisdiction over the crime of aggression.
The Conference also adopted a resolution by which it amended article 8 of the Rome Statute to bring under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character.
Furthermore, the Conference adopted a resolution by which it decided to retain article 124 in its current form and agreed to again review its provisions during the fourteenth session of the Assembly of States Parties, in 2015. Article 124 allows new States Parties to opt for excluding from the Court’s jurisdiction war crimes allegedly committed by its nationals or on its territory for a period of seven years.
Stocktaking of international criminal justice
The Conference concluded its stocktaking exercise on international criminal justice with the adoption of two resolutions, a declaration and summaries of discussions.
The resolution on the impact of the Rome Statute system on victims and affected communities, inter alia, recognized, as essential components of justice, the right of victims to equal and effective access to justice, support and protection, adequate and prompt reparation for harm suffered and access to information concerning violations and redress mechanisms. Moreover, the Conference underlined the need to optimize outreach activities and called for contributions for the Trust Fund for Victims.
The Conference also adopted a resolution on the issue of complementarity, wherein it recognized the primary responsibility of States to investigate and prosecute the most serious crimes of international concern and the desirability for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level.
In the Declaration on Cooperation, the Conference emphasized that all States under an obligation to cooperate with the Court must do so. Particular reference was made to the crucial role that the execution of arrest warrants played in ensuring the effectiveness of the jurisdiction of the Court. Moreover, the Review Conference encouraged States Parties to continue to enhance their voluntary cooperation and to provide assistance to other States seeking to enhance their cooperation with the Court. In addition, the Conference took note of the summary of the roundtable discussion on cooperation.
The Conference further took note of the moderator’s summary of the panel discussion held on the issue of “peace and justice”. The panel highlighted the paradigm shift the Court had brought about; there was now a positive relation between peace and justice. Although tension between the two continued to exist and had to be addressed, amnesties were no longer an option for the most serious crimes under the Rome Statute.
Enforcement of sentences
In its resolution on strengthening the enforcement of sentences, the Conference called upon States to indicate to the Court their willingness to accept sentenced persons in their prison facilities and confirmed that a sentence of imprisonment may be served in prison facilities made available through an international or regional organization, mechanism or agency.
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