US refuses to sign as delegates endorse crime of aggression

The use of violence by one state against another is now a crime triable by the International Criminal Court after delegates, following a consensus agreement, included it in the Rome Statute on Friday evening.

An agreement, immediately described as an anti-climax by human rights groups because it was soft on big powers, was arrived at half past midnight after close to a fortnight of diplomatic battles. This means that use of force in breach of the UN Charter such as an invasion, a bombardment, a blockade or a country allowing another state to use its territory to attack a third nation is now a crime.
The decision opens the door for individual prosecutions for a fourth crime by the Court established in 2002. The other crimes are genocide, war crimes and crimes against humanity.

Successful meeting
“We are happy with the outcome given the divergent views, under the circumstance that was the best we could get, and Kampala will be known for this historic moment,” said Ambassador Mirjam Blaak one of the key Ugandan organisers of the meet yesterday morning.
However, groups like Human Rights Watch said the Security Council members had complicated the entire process by seeking to retain “exclusive control” over the crime of aggression.

“ICC as a judicial body must be independent from the political interference of the Security Council that is a political organ that takes decision for political reasons,” said Mr Richard Dicker- the director for International Justice at HRW.
But politics did prevail at the end. It was agreed for example that while the Court now has jurisdiction over a crime of aggression it had to wait for six months before taking its action and can only do so if the United Nations Security Council failed to refer such an act to The Hague.

The Security Council can also “veto” any prosecution on grounds that it was prejudicial to international security and keep objecting with annual resolutions.
Delegates also conceded that the crime will not apply to non-state parties which like America have refused to sign on to the ICC. State parties can also submit a “non-acceptance” declaration to the court to avoid prosecution save for where it is the Security Council that has referred a case.

“[This deal] unjustifiably solidifies blanket and automatic impunity of non-state parties,” said Mr Ichiro Komatsu, the head of the Japanese delegation to Kampala.
The Kampala deal also retained a get-out clause, an optional protocol which allows states not to subject their nationals to the court’s jurisdiction. Thus agreements signed by say Washington and Kampala not to give up American citizens to the court will remain legal and in force.

Great step forward
Dr Benjamin B. Ferencz, a professor of international law and first prosecutor of the crime of aggression in the Nazi Nuremberg trials, told Sunday Monitor that this is a great step forward in the evolution of international humanitarian law.

During the conference Ferencz had argued that there was no contradiction between the Security Council and ICC since one made political decisions about international peace and the other tried crimes that resulted from a breach of such a peace.
Ugandan Attorney General, Dr Kidhu Makubuya told Sunday Monitor – the country had crossed a historical milestone.

“This is particularly significant because Uganda was the first state to make a referral and submitting itself to the jurisdiction of the ICC,” said Dr Makubuya.