Monday June 7 2010

States yet to agree on crime of aggression

Ugandan Justice Elizabeth Ibanda Nahamya (R)

Ugandan Justice Elizabeth Ibanda Nahamya (R) with fellow women lawyers at the ICC review conference on Friday. PHOTO BY STEPHEN WANDERA. 

By Solomon Muyita


As diplomats enter the second week of the International Criminal Court review in Kampala, the world’s powerful states are expected to pressure their weak counterparts to delay the criminalisation of the crime of aggression under ICC.

Whereas no state has explicitly come out to oppose the inclusion of the crime of aggression, intense negotiations took place on Friday over what exactly constitutes the crime of aggression and under whose jurisdiction it should be placed.

Last week, weaker states who are the majority mainly from Africa and Asia, seemed to have reached consensus that the Kampala declaration should empower the ICC prosecutor to independently investigate and determine what constitutes aggression and later on prosecute the errant officers.

Power play
World powers however, want an external filter, if the crime of aggression is to be tried by the ICC. The countries, mainly constituting the permanent members of the UN Security Council, want the ICC to first wait for the Security Council nod before investigating or prosecuting anybody for aggression.

Of the five permanent members of the Security Council, only the United Kingdom and France have ratified the Rome Statute that established the ICC, while the United States of America, Russia and China remain on the sidelines. Other powerful states like Israel and India have also not ratified the 1998 Rome Treaty.

The USA, Britain, France and China last week cautioned states not to rush through the negotiations before “genuine consensus” is achieved on the definition of the crime of aggression and jurisdictional conditions. “Finishing the unfinished business of Rome does not mean rushing to a premature conclusion on institution-transforming amendments on which there is not yet genuine consensus,” submitted Harold Hongju Koh, Legal Advisor US Department of State.

Stephen J. Rapp, the United States Ambassador for War Crimes told the conference at Munyonyo earlier in the week that “moving forward now on the crime of aggression without genuine consensus could undermine the court.”
Britain said as a permanent member of the Security Council, it can use its position in assisting the court in its dealings with the Council.

Mr Chris Whomersley, who led the UK delegation in Kampala said there is nothing wrong for the Security Council to work closely with the ICC, especially when it comes to the prosecution of the crime of aggression.
The negotiations on the crime of aggression are expected to be concluded tomorrow.