Tuesday June 1 2010

AU opposed to Security Council approval of ICC investigations

By Alfred Nyongesa Wandera


African states party to the International Criminal Court have overwhelmingly agreed that the court’s jurisdiction over the crime of aggression should not be subject to the Security Council’s approval.

The inclusion of the crime of aggression on the list of crimes tried by the International Criminal Court is among the debates at the 10 day ICC Review Conference going on in Kampala.

Presenting the statement on behalf of the 33 African states who are parties to the Rome Statute at the conference yesterday, Kenya Attorney General Amos Wako said the statute already contains a filter mechanism in the form of Pre-Trial Chamber hence ruling out the need for approval by the Security Council.

“Some have suggested that the Council’s prior approval for the exercise of jurisdiction is a necessary consequence of the provisions of the Charter – some going so far as to argue that the council has ‘exclusive responsibility’ of determining the existence of the crime of aggression,” Mr Wako said.

He added: “This is consistent neither with a literal or purposive interpretation of the Charter which, while granting the Council the ‘primary responsibility’, does not exclude the role of other organs of the UN or the ICC from making determinations on the crime of aggression.”

Mr Wako said the importance of the principle of independence of the judiciary and the International Criminal Court should not be subject to political considerations.

African countries are now represented by Uganda and Nigeria on the Security Council, but are non-permanent member states and therefore do not hold veto powers.

The permanent member states to the Security Council – USA, Russia, China, United Kingdom and France are not elected and are not parties to the Rome Statute hence tend to lean onto their home political policies, what the African states are understood to disagree with.

However, Mr Wako said African states approve of the treatment of the crime of aggression just like all the other crimes tried by the ICC. He therefore said that in order to avoid political prosecutions, it is important that the alleged aggressor state should have consented to the court’s exercise of jurisdiction over the crime of aggression.

The policy has applied to the war crimes, crimes against humanity, and genocide, the reason why although Sudan President Omar el-Bashir has been indicted by ICC over crimes against humanity in Darfur, he can only be arrested by the state parties to the Rome Statute.

Echoing the former UN chief Kofi Annan, the ICC chief prosecutor Luis Moreno-Ocampo castigated the ‘big’ nations among which are the permanent member states to the Security Council, over their persistence in preaching justice and yet they don’t allow the justice to be applied on them. He said it is through ratification of the Rome Statute by all nations that the ICC will be enabled to ‘bite’.

Mr Moreno-Ocampo said by the end of this year, two suspects of the post election violence that rocked Kenya in 2007 and 2008 will be prosecuted in The Hague.

Mr Wako dismissed reports that Kenya had asked Mr Moreno-Ocampo to delay the prosecution until next year, saying the role of ICC in prosecution of post-election violence perpetrators is the greatest privilege the country has ever had.

“Mr Moreno-Ocampo was in Kenya recently but we never raised that to him. So what is the reason for us to raise that matter now? Whoever is saying that is peddling lies,” Mr Wako said.

He confirmed Kenya’s support and commitment to its obligations to uphold the integrity of the Rome Statute and to the reforms within the ICC.