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Taking Stock of the International Criminal Court in Africa

Published on Monday 31st May 2010

The first Review Conference of the International Criminal Court opens Monday in the Ugandan capital, Kampala. The conference is the first opportunity to propose amendments to the treaty that established the ICC, the Rome Statute, and to assess the implementation and impact of the ICC.

Since it was established in 2002, the Court has focused heavily on Africa, though the Office of the Prosecutor is making preliminary examinations in Afghanistan, Colombia, Georgia and Palestine, as well as Guinea and Côte d'Ivoire.

The Congolese Thomas Lubanga Dyilo is presently on trial for war crimes. He is accused of conscripting children into his Patriotic Forces for the Liberation of Congo during conflict in 2002 and 2003. Two other cases from the Democratic Republic of Congo are in pre-trial stages, and arrest warrants have been issued for five top members of the Ugandan rebel group Lords Resistance Army.

Perhaps the most high profile charges are those leveled against the Sudanese president Omar al-Bashir who is accused of seven counts of war crimes and crimes against humanity, including murder, rape and torture.

The charges against Bashir exposed a crack in the solidarity against impunity that the ICC represents, when an African Union summit in Libya issued a statement of non-cooperation with the arrest warrant. Civil society pressure has meant that many of the African signatories to the Rome Statute have since reaffirmed that they would fulfil their obligation to execute the warrant if Bashir were to visit their countries.

Dismas Nkunda, the chair of the Darfur Consortium and co-director of the International Refugee Rights Initiative, says, "The review conference offers an opportunity for both state parties to the Rome Statute and those who see the ICC differently to sit together and reflect on where we have come from and what could work better going forward.

"But the most crucial element for the conference will be the stock-taking exercise which looks at the court in relation to the victims and the ability to see what worked from their perspective and what did not work."

Stock-taking

This stock-taking will assess and evaluate the Rome Statute's impact on complementarity, cooperation, victims and affected communities, and peace and justice.

Central to the ICC's mandate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unable or unwilling to investigate and prosecute.

Complementarity is the principle behind ICC Prosecutor Luis Moreno-Ocampo opening investigations into the 2008 violence that followed elections in Kenya, where a series of delays have cast doubt the governnment's seriousness in identifiying and prosecuting those responsible for organising the violence.

In a brief on Colombia for the Review Conference, Amanda Lyons and Michael Reed-Hurtado of the International Center for Transitional Justice, acknowledge that the existence of the ICC has strengthened prosecutors and judges, and prompted the adoption of the Justice and Peace Law of 2005 - representing a step away from the blanket amnesties that had previously been granted during peace processes.

But they write that national courts have so far failed to address widespread and systematic state-backed violence; the new law has not yet produced any convictions. Civil society would like Moreno-Ocampo to open an investigation opened in Colombia.

Victims

Nearly three hundred thousand registered victims of violence are waiting for justice in Colombia. Another theme of the stock-taking will be to assess the Court's impact on victims of serious crimes against humanity.

"Victims are no longer the silent bystanders who must suffer in silence; mechanisms such as the International Criminal Court are there to provide victims' with an independent voice, to enable them to be heard in safety and dignity and to ensure that they achieve justice that is meaningful," says Carla Ferstman, director of REDRESS, a UK based organisation focused on victims' rights.

Related to this, is the issue of unintended impact of ICC investigation and prosecution on affected communities. Nkunda says the arrest warrants issued against Bashir illustrates this danger.

"There were increased hostilities against the very communities that were hoping for quick and efficient justice. This was not foreseen by the drafters of the Rome Statute, so it's a discussion that needs to be heard going for the future of the Court."

Ferstman agrees: "There is the huge challenge of protecting victims and witnesses and those that assist them. Many of the countries and regions where the Court is active remain insecure, with ongoing conflicts. Ensuring that those that assist the Court, including the range of grassroots organisations that have assisted the Court in its work on the field, is vital to the long term success of the Court."

The Bashir case also highlights the issue of cooperation of state parties.

"The success of the ICC rests on the cooperation of external actors; on the willingness of the actors to cooperate with the court," Nkunda told IPS, referring to the refusal of several African parties to cooperate in arresting the Sudanese president and handing him over for prosecution.

"And that is the same situation with LRA rebel leader Joseph Kony and his commanders: who is supposed to apprehend them? That is where cooperation by states, the U.N., and regional bodies like the African Union come into play," Nkunda says.

Beyond the stock-taking, there is expected to be discussion about adding "crimes of aggression" to the Court's mandate, enabling it to investigate and try states for going to war against their neighbours.

"I think the most difficult issue will be the question of crimes of aggression and whether it should be amended into the Rome Statute," says John Washburn, convenor for the American Coalition for the ICC. "But I do not think that issue is going to dominate the conference."

Approximately 2,000 representatives of state parties, non-governmental organisations and intergovernmental agencies will participate in the conference which will be opened by the President of the Assembly of the States Parties, Ambassador Christian Wenaweser, the United Nations Secretary-General Ban Ki-moon and the ICC President Judge Sang-Hyun Song.

The ICC Prosecutor, Luis Moreno-Ocampo, the former United Nations Secretary-General Kofi Annan and the President of Uganda, Yoweri Museveni are also expected to attend.

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