By Haggae Matsiko
Benjamin B. Forencz, a former Nuremberg trials prosecutor has castigated the UN Security Council members for hindering the International Criminal Court (ICC) from attaining jurisdiction to prosecute the crime of aggression.
The ICC is holding its performance review conference at the Lake Victoria shore hotel, Munyonyo Commonwealth Resort, in Kampala. The 14 day conference ends on June 11. The latest news from the conference indicates that although small states like Uganda want the ICC empowered to prosecute the crime of aggression, the big powers remain sceptical and evasive of the issue that has threatened world peace for decades.
"The Security Council members are putting obstacles. They claim that aggression should be defined but it was already defined," said Benjamin.B.Forencz
Forencz's statement means that the 111 signatories of the ICC who are in Kampala are likely to fail to agree on the crime which has never been made a prosecutorial offence by the ICC since it was adopted by the Rome Statute in 1998.
If the ICC does not adopt the crime the "fight against impunity" which Gahr Støre, Oslo's
Foreign Minister, called "a shared obligation" will remain a problem.
Since its inception in 2002, the ICC has only had jurisdiction over crimes against humanity, genocide, and war crimes. The drafters of the Rome Statute which establishes the court had intended to give the court jurisdiction over the crime ; but they failed to agree on its legal definition.
Following the disagreement, a group called Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to study the crime and submit its findings, which it did in June last year.
According to their findings, the crime implicates states that have planned, prepared, initiated or executed the use of armed force against other sovereign nations, guilty.
This explains why the big powers USA, France, Britain, China and Russia that constitute the Security Council are opposed to the ICC having jurisdiction to prosecute the crime they have all committed.
"It is clear the Security Council members do not want to surrender their powers to the ICC," said Benjamin, the former World War II prosecutor.
Despite this, the ICC President, Judge Sang-Hyun, said the court needs "cooperation from party states and that the only formal possibility for the court to deal with non-cooperation is to refer an instance of it to the Assembly or Security Council."
Analysts say that since the court is subordinate to the interests of the Security Council members, the outcome of the Kampala declaration will largely depend on the big powers' position on the crime. And Judge Song rightly says the party states' "cooperation with the court is in tension with some other state priorities."
The ICC therefore faces a challenge to reconcile the interests of the state parties and the role of the court considering that it seems to draw its power from the Security Council member states.
"It is my hope that the Assembly will consider as a matter of priority how they can best use the
political and diplomatic tools at their disposal to bring about cooperation," Judge Song says.
Although the review conference in Kampala is hardly a week in progress, it is clear that the Council members are lobbying against "aggression" being a prosecutable crime.
For instance Stephen J. Rapp, the US Ambassador for War Crimes, cautioned that "moving forward now on the crime of aggression without genuine consensus could undermine the court." Indeed the United States was reluctant to attend the ongoing ICC conference, according to media reports.
President Barack Obama said the United States could not confirm attendance before they had reached an internal policy on the whole issue.
Experts however said that US failure to attend the Kampala conference would undermine her role as a flag bearer of world justice. But like the United States all the big world powers are opposed to the crime of aggression being subjected to the jurisdiction of the ICC.
For instance France just withdrew the declaration which under Article 124 of the statute allowed her to postpone ICC jurisdiction over war crimes after intensive pressure and claims that Article 124 is contradictory to the purpose of the ICC.
Experts say that the choice of Kampala as a venue for the ICC conference is ironical. They point to the fact that the country has been in the limelight for aggression and alleged war crimes.
The Uganda Peoples Congress party president Olara Otunnu has accused President Museveni's National Resistance Army rebels of committing atrocities in Luweero Triangle during the 1981-86 rebellion that brought him to power and in northern Uganda during the counterinsurgency operations against the LRA rebels.
Experts say Uganda has been an ally of America in committing aggression. The Uganda army entered DR Congo between 1998 and 2002 and the International Criminal Tribunal later convicted Uganda for external aggression and ordered her to pay US$10 billion to DRC in reparations for loss of property and lives.
One thing remains clear that the world cannot expect much from the Kampala ICC review conference unless the Security Council's "big brothers" give it a nod.
