“An important step against impunity”
The International Criminal Court in the Dutch city of The Hagne
What difference did the review conference make in terms of international criminal justice?
It was definitely a key moment. It was the biggest meeting since the signing in 1998 of the Rome Statute, which established the International Criminal Court. The meeting in Uganda was the first opportunity to change details of the statute. Discussions did not only focus on the establishment of the global court and its work, but also took account of how countries cooperate with the ICC. All important stakeholders were present, including several non-governmental organisations.
A topic of debate was whether “aggression” should be considered an international crime.
Yes, the crime of aggression is a very important issue. A working group had been addressing it since 1998, but before Kampala, there was no common definition.
Now there is one.
Yes, finally. But it was a very difficult process. The question of who decides on starting proceedings also proved time-consuming. These two issues dominated the second week of the conference. In particular, France and Britain demanded that only the UN Security Council be allowed to start a case.
What does that imply?
In regard to the crimes defined earlier, the member states can refer cases to the court. As an alternative, the prosecutor can commence investigations proprio motu. These two options also exist for the crime of aggression, but only after the UN Security Council takes its stance. This procedure is problematic, because it undermines the ICC’s exclusive jurisdiction over the crime of aggression. On the other hand, aggression is a newly defined crime. There has never been anything like it before. Therefore governments are acting quite carefully.
Did the expansion of Article 8, which defines war crimes, also cause such controversy?
No, that was not so controversial. Consensus was reached rather fast. Henceforth, the use of expanding bullets or chemical weapons such as gases or liquids in non-international armed conflicts also constitutes a war crime. Many conference participants already considered this customary law, however.
So in future, a gas attack, such as the one ordered by Saddam Hussein, the former Iraqi dictator, on the Kurdish settlement of Halabcha in 1988, would count as a war crime?
Yes, exactly. What was formerly recognised as a war crime between states, is now also the case in internal conflicts. That is what is new.
What else was important in Kampala?
The victims. In the ICC, they play a more important role than in normal criminal cases. They are present to a larger extent, and in many cases they are also witnesses. The conference, moreover, made it clear that staff members of the court, with its permanent seat in The Hague, must spend more time in the field to gain a better understanding of victims and witnesses. Moreover, victims should get better reparations. There already is a respective trust fund for victims. So far, however, the contributions are voluntary and insufficient. And as far as interaction with victims during the proceedings is concerned, the court is on a learning curve.
Please give an example.
In the first court case – against the Congolese rebel leader Thomas Lubanga – a former child soldier was questioned. When the boy entered the courtroom in The Hague he found himself surrounded by white people in strange robes. He was totally frightened. The only person he knew in court was the accused man, who had previously been his commander. Now he was supposed to testify against him. The setting did not work out. The court was adjourned and they had to find a solution. In the end, the young man was heard in smaller setting, with fewer individuals in civilian clothes.
How do you rate the results of the conference as a whole?
There were several successes. Many governments showed good will, and the conference passed a high level declaration. Important aspects such as the cooperation of member states and their responsibility for successful court operations or the concepts of peace and justice were discussed. Furthermore, civil society organisations organised several side events, where debate was held at a very high level. It is a good thing that there was consensus on the definition of the crime of aggression, but that was only a partial success.
Because the new crime of aggression is barred until 2017. Until then, two thirds of the states must vote for its binding inclusion as equal to the other crimes. For the time being, the crime of aggression is off the table.
And what are the next steps?
The member states must now ratify the changes.
In early 2009, the world criminal court started its first trial. Currently, it is starting its third case, against Jean-Pierre Bemba. How do you assess the achievements after eight years?
All in all, the ICC is doing quite well. In 1998, nobody believed that the Rome Statute would come into effect within four years and that ten years later, it would have more than 100 members states, and investigations would be running in five countries. That is actually very positive, an important step against impunity.
Critics – especially Africans – accuse the International Criminal Court of specifically focusing on their continent and pursuing crimes in other parts of the world with less vigour. To date, only Africans have been accused.
Yes, people make this accusation. It is even sometimes said that the ICC is a court of whites against blacks. But this perception is wrong. The court actually protects and rehabilitates African citizens. It is strengthening the continent. But it would make sense for the ICC to look into other cases too. Columbia, Afghanistan and Georgia should stand next in line.
When will there be verdicts?
This may take a long time, but it may also happen within a year. This is different from case to case.