Shaky Deal on Crimes of Aggression

Blake Evans-Pritchard

Africa Editor

Friday, 18 June, 2010

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Blake Evans-Pritchard
IWPR Africa editor

The news that the International Criminal Court, ICC, will not be able to prosecute crimes of aggression until 2017 at the earliest should be welcomed. The loopholes that allow powerful member states to escape the ICC's jurisdiction should not.

Delaying the introduction of crimes of aggression for seven years affords the court some much needed breathing space, allowing it to concentrate all its efforts on what it was initially set up to do: end impunity for the very worst human rights abuses.

The problem is that, even after 2017, member states will be able to opt-out of the new rules agreed on at Kampala Review Conference on the future of the court, which ended last week.

The foundations of the ICC remain shaky. Out of fourteen arrest warrants issued, only four men are currently in custody. The charges against Darfur rebel leader Bahr Idriss Abu Garda were thrown out earlier this year.

The court is yet to secure a conviction. Judges will probably rule on the Thomas Lubanga case later this year, but it is by no means certain that the charges against him will stick. The final stages of his trial have seen a concerted effort by defence lawyers to discredit the way that the prosecution team gathered its evidence.

Combine this with a woeful lack of funding and the fact that many of the world's most powerful nations – including China, Russia, India and the United States – have yet to sign up to the court and one starts to wonder how secure the future of the ICC really is.

Now is the time for the ICC to really prove its worth – not to take on new responsibilities, which it is ill-equipped to deal with.

DEFINING THE CRIME

The agreement that was reached by ICC member states on June 11 at the Kampala conference takes the whole concept of international justice into unchartered waters.

Member states eventually agreed to define a crime of aggression as “a manifest violation of the Charter of the United Nations”.

But exactly what constitutes a manifest violation of the UN Charter remains open to interpretation. The agreement suggests that it could include a bombardment or a blockade of a sovereign state. But one amendment to the resolution, which crept in at the last minute, explicitly states that the term “manifest” is an objective term.

The fact that no one seems quite sure what crimes of aggression mean has unsettled countries such as the US, which worries that the imprecision of the definition could leave it open to political misuse.

The US and others have argued that there is sometimes justification for using force such as in the 2003 invasion of Iraq. But the definition of crimes of aggression could lead to criminal prosecutions for any similar action in the future, which has not been sanctioned by the UN.

Benjamen Ferencz, 91, is the last surviving prosecutor from the Nuremberg war crimes trials, and has dedicated his life to finding a way to stop wars from occurring in the first place.

He told IWPR at the Kampala event that what he saw in the concentration camps of post-war Germany, as he was gathering evidence for what he describes as “the largest murder trial in human history”, persuaded him about the need to end war for good.

“I still have flashbacks,” he said. “What I saw is incomprehensible to the human mind. I cannot describe the scenes in terms that anyone who was not there can understand. The smell, the sickness, the disease, the people dying. I've stepped over people I was sure were dead and then I'd see the movement of an arm. These are scenes that I have difficulty describing. This was not a Hollywood scene. This was real life.”

For him, it was the illegal war waged by Nazi Germany that created the situation that allowed such terrible atrocities to occur.

“My whole reason for being in Kampala is to deter war,” he said. “My hope is that one day we'll be able to look back at this crazy time when we used to kill our neighbours and everyone around us, and thought that was just. Soldiers go home and we make them heroes. This is crazy. It's stark raving mad.”

A VALUABLE TIME WINDOW

But Ferencz will have to wait some time longer for his lifetime ambition to be realised.

At the Kampala conference, delegates agreed that the ICC could have jurisdiction over the crime of aggression, but only after seven years had elapsed, in order to give member states time to prepare for it.

France, the UK and the US (currently not a member of the ICC), who were particularly worried about including crimes of aggression in the court's mandate, had initially hoped that the authority to begin proceedings for such crimes would rest solely with the UN Security Council, where they have a veto.

However, after protracted negotiations at the Kampala conference, delegates eventually decided that, in the absence of action from the Security Council, the ICC could initiate proceedings on its own.

More worrying is the opt-out that these world powers managed to secure.

If member states do not accept the ICC's jurisdiction over crimes of aggression, they can signal to the court registrar that they wish to opt-out of the new rules, effectively shielding them from any investigation.

This sends the wrong signal to the international community about the role of the ICC in the world, and strengthens those critics who have insisted that the court has been set up to mete out justice to the world's weaker nations.

If there is one overriding message that advocates of the ICC have tried to get across during the review conference, it is that the ICC is a court set up to serve Africa and not to fight against it.

All the main dignitaries present in Kampala – UN Secretary General Ban Ki- moon, his predecessor Kofi Annan, ICC prosecutor Luis Moreno Ocampo and Ugandan president Yoweri Museveni – said as much in the speeches that they gave at the start of the gathering.

But as Ferencz points out: having crimes of aggression on the statute, but not giving the ICC adequate powers to deal with it is disappointing in the extreme.

Blake Evans-Pritchard is IWPR's Africa Editor.

The views expressed in this article are not necessarily the views of IWPR.