ICC conference offers Opportunity to commit to justice

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Uganda is privileged to host the first landmark review conference of the Rome Statute which established the International Criminal Court (ICC) . The United Nations Secretary General, Ban Ki-moon will open the historic conference today at Munyonyo.

It’s 12 years since the Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute), the treaty that established the International Criminal Court (ICC) was adopted at a diplomatic conference in Rome. The statute, which came into force on July 1, 2002 and has since been ratified by 110 countries including Uganda, has drastically changed international criminal law.

The Rome Statute and its implementing agency the International Criminal Court, has in the short period of its existence ensured that perpetuators of horrendous  crimes against humanity do not escape the rule of law. And the list of indicted suspects grows by the day, the latest being those accused of perpetuating crimes against humanity during the 2007/8 post election violence in Kenya.

The ever elusive Joseph Kony and his Lords Resistance Army (LRA) deputies Vincent Otti, Okot Odhiambo and Raska Lukwiya have also been indicted but are yet to face trial at the ICC. They stand accused of 33 counts of war crimes and crimes against humanity committed against the people of northern Uganda in the last 20 years.

The indictment of these men and others still at large in various parts of the world proves one thing ; that the Rome Statute which is now up for review, has to a certain degree been effective in ensuring that there is no place for impunity in the 21st Century. Of course there is a lacunas (gaps) in the Rome Statute which must be filled.

One such gap is the lack of a definition for the international crime of aggression. It is now a serious issue of contention because of the presumed influence of the powerful nations when they seek to attack or invade weaker nations without the approval of other civilized states.

Unlike the crimes of genocide, crimes against humanity and war crimes, the International Criminal Court (ICC) cannot exercise jurisdiction for the crime of aggression because the Statute is silent on its definition and doesn’t set out the circumstance under which court can summon suspects.

However , according to the proposed amendment the individual crime of aggression is now defined as the planning, preparation, initiation or execution by a person in a leadership position, of an act of aggression. Importantly, it contains the threshold requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations, which is basically an instrument geared at the peaceful co-existence of nations.

The act of aggression is the use of armed force by one State against another State without the justification of self-defense or without authorisation by the Security Council. The acts of aggression contained in the amendment proposals involve invasion by armed forces, bombardment and blockade.
It’s encouraging that in an effort to avert cross border wars between or among nations, the threshold and formulation of the proposed definition: there is preliminary compromise made by many states that the powerful states should not use their positions to invade other countries without the approval of the international community. It should be noted , however, that USA, France and Britain are some of the super powers still opposed to this settlement.

On the issues of ICC’s jurisdiction, there is also broad consensus that an investigation could be opened by the prosecutor on the basis of a UN Security Council referral, a state-party referral, or proprio motu (the prosecutor’s own volition). In other words, the same trigger mechanisms would apply as in the case of the other three crimes under the Court’s jurisdiction. No nation should be allowed to invade another without just cause and support of other civilised states.

The writer is a journalist and advocate
msserwanga@gmail.com

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