The road to the ICC Kampala conference

By Vision Reporter

AGAINST a backdrop of widespread criticism of its jurisdiction, the biggest International Criminal Court (ICC) gathering will be in Kampala, to take stock of its 11 years of operation. <br>The Review Conference opens today at the Munyonyo Commonwealth Resort and will end June 11.

By Milton Olupot and Felix Osike

AGAINST a backdrop of widespread criticism of its jurisdiction, the biggest International Criminal Court (ICC) gathering will be in Kampala, to take stock of its 11 years of operation.
The Review Conference opens today at the Munyonyo Commonwealth Resort and will end June 11.

“This major gathering of officials and activists from around the world in Kampala is bad news for those responsible for the worst international crimes,” said Richard Dicker, international justice director at Human Rights Watch.

The United Nations Secretary General Ban Ki-Moon and representatives of the court’s 111 member states, non-member states, the United Nations, and civil society groups are expected to reaffirm their commitment to global justice.

The conference will take stock of the state of international justice and consider amendments to the ICC founding treaty, the Rome Statute with a view to strengthening it.

ICC is the world’s first permanent court mandated to bring to justice, perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so.

The Rome Statute, entered into force in 2002. The ICC does not have retroactive jurisdiction and therefore does not apply to crimes committed before July 1, 2002 when the statute came into force.

The conference will also review the list of crimes within ICC and will discuss the crime of aggression. Member states agreed to include the crime of aggression in the Rome Statute in 1998, but could not agree at the time of its drafting on a definition–using force that is manifestly contrary to the UN charter.

Some UN permanent members like US and China have declined to ratify the statute on grounds that that the court’s prosecutor has overriding powers and the UN Security Council has a limited role.

Although former US President Bill Clinton signed the statute in December 2000, President George Bush ‘unsigned’ it in 2002 fearing the court would unfairly target U.S. military personnel deployed around the world.

Uganda ratified the Rome Statute in June 2002, becoming one of the first countries to do it. Uganda Parliament on March 12 this year also passed the ICC Bill, three years after it was tabled. The Bill makes provision in Uganda’s law for the punishment of the international crimes of genocide, crime against humanity and war crimes.

It will enable Uganda to cooperate with the ICC in performance of its functions, including the investigation and prosecution of persons accused of having committed heinous crimes.

It provides for the arrest and surrender to the ICC of persons alleged to have committed crimes against humanity in addition to enabling the ICC to conduct proceedings in Uganda.

The ICC’s action may be triggered in one of three ways: member states or the UN Security Council can refer a situation, to the ICC prosecutor, or the ICC prosecutor can seek on his or her own, authorisation by a pre-trial chamber of ICC judges to open an investigation.

Since the Rome statute came into force, three state parties have referred their ‘situations’ to the ICC: Uganda, Democratic Republic of Congo and the Central African Republic.

The ICC in July 2005 on the request of Uganda government indicted Lord’s Resistance Army rebel leader, Joseph Kony, and his top commanders — Okot Odhiambo, Dominic Ongwen, who along with their demised colleagues Vincent Otti and Raska Lukwiya for their roles in over 2000 killings and 3200 abductions in over 850 attacks committed between July 2002 and June 2004.

However, the ICC warrant for the top LRA commanders became a big issue during the peace talks in Juba mediated by the Southern Sudanese Vice President, Dr. Riek Machar, and was eventually the scape goat for the failure by Kony to sign the Final Peace Agreement.

A top Kampala advocate who took part in the Juba peace process, Jacob Oulanyah, says: “the entry of the ICC into the picture of the peace process became a big problem in the negotiating room.”

The UN Security Council referred the situation in Darfur to the ICC in March 2005.

Three arrest warrants were in April 2007 issued against Muhammed Ali Abd-Al –Rahman, the Janjaweed militia leader and Muhammed Harun, former state minister for interior of the Sudanese government.

In March 2009, an arrest warrant was issued against Sudanese president Omar Hassan al Bashir, the only sitting head of state wanted for war crimes by the ICC.The ICC prosecutor, Moreno Ocampo, is sure they will eventually get him.

“Bashir can not travel to any country that is a signatory to the Rome statute, that’s how far we have limited his movement. We shall finally capture him,” he says.

In light of allegations of widespread use of rape, torture and murder against civilians, Jean Pierre Bemba, former Vice President of the DRC was arrested in Belgium in May 2008 after an arrest warrant was issued by the court.

The court began its first trial, of the Congolese rebel leader Thomas Lubanga, on January 26, 2009. Its second trial against the Congolese rebel leaders, Germain Katanga and Mathieu Ngudjolo Chui, began on November 24, 2009.

An arrest warrant remains outstanding for Bosco Ntaganda, a former rebel commander now integrated into the Congolese national army.

In Kenya, Moreno Ocampo’s request was granted to commence an investigation on the crimes against humanity, allegedly committed during the post electoral violence between December 2007 and January 2008.

The Kampala meet comes as prescribed in the Rome Statute that seven years after the treaty enters into force, the UN secretary-general is to convene a review conference to consider any amendments to the treaty.

There will be four topics for discussion— cooperation; complementarity, or strengthening national courts to try Rome Statute crimes; the impact of the Rome Statute system on victims and affected communities; and the relationship between peace and justice.

Under the principle of complementarity, states retain the primary jurisdiction to try genocide, war crimes and crimes against humanity suspects. It means the ICC can only intervene where a state party is unwilling or unable to investigate or prosecute the specific case the prosecutor has built.

A war crimes court has already been set up in Uganda although it has not yet commenced work. It is expected that some fighters already captured by the Uganda People’s Defence Forces, will be tried here, as the search for Kony and others continues.

The court does not have its own police but relies on governments to carry out arrests and assist its investigations and prosecutions.

Richard Dicker of Human Rightd Watch contends that unless governments make arrests, the ICC cannot deliver justice to victims of mass atrocities.

“We will be listening in Kampala for pledges of increased support to place perpetrators and would-be perpetrators on notice that they will be held to account.”

The road to the ICC Kampala conference