The Rome Statute Review Conference in Kampala

12 years ago, during the final session of the Rome Conference in June 1998, 120 states unexpectedly agreed to establish an International Criminal Court, the ICC with seat in The Hague. The final vote at the Rome Conference was the result of a long process that had started with the Nuremberg Military Trials against those most repsonsible for the Nazi atrocities committed during the Second World War. With the words of the prosecutor of the IG-Farben trial, Joshua DuBois, the idea behind the trials was that ‘It will not be possible to re-establish a healthy and peaceful European community by simply covering the dead with a shroud without any investigation.’

The idea that prosecuting atrocities committed in wars is in some way important for achieving peace after conflict is an idea that has been around ever since. But, for a long time it remained only an idea. The Cold War balance of power precluded any compromise on establishing an international organisation with the competence to judge crimes committed on an international level. But after the collapse of the Soviet Union this idea took a tangible shape and was finally passed through the Rome Statute, laying the foundation for the ICC in 1998. The 60 necessary ratifications of the Rome Statute to trigger its entry into force were gathered with exceptional speed, so the ICC could start its work in 2002 already.

Europe and Latin America are two of the main supporters of the court. As the ICC has no police force, it is heaily dependent on such state support and cooperation to do its work. The first eight years have seen a slow start of the court's work, with only three of thirteen prosecuted persons in custody and a polemic discussion about the courts role in the scope of an arrest warrant issued for the Sudanese President Omar al-Bashir.

From May 31 to June 11 2010 the court's work was assessed during the Rome Statute Review Conference in Kampala, the capital of Uganda. The Review Conference had been planned since the Rome Conference and apart from assessing the court's work so far, amendments to the Rome Statute were discussed in Kampala. The three major amendments that were discussed at the conference were the deletion of art. 124, giving the states parties to the treaty the right to exclude the ICC's jurisdiction on war crimes for seven years in their territory (the article was not deleted); the amendment of art. 8, penalising the use of weapons like poison, chemicals and hollow-tip projectiles in internal conflicts (the amendment was passed) and most importantly the definition of the crime of aggression.

So far the ICC has jurisdiciton over war crimes, crimes against humanity and genocide. The crime of aggression, meaning the penalisation of a breach of the UN Charter through an armed attack, was also included in the Rome Statute, but the ICC's jurisdiction for the crime was pending a clear definition. A definition that was now reached at the Kampala Conference. Unlike to many other international conferences, the results of the Kampala conference were not clear from the start. Usually results are agreed months before the actual starting date of the conference between the delegations of the states involved. Nevertheless, the definiton of the crime of aggression and the different trigger mechanisms discussed in Kampala remained contested until the last minute.

Many countries, especially the African states parties and the UNASUR, were in favour of implementing the crime of aggression. But one central question remained: Would the UN Security Council trigger the jurisdiction of the ICC or would a Chamber of the ICC decide whether the Office of the Prosecutor could start an investigation in a case. The UN Security Council already has the power to refer cases to the ICC and defer them for 12 months if the council deems it necessary. The referal of the situation in Darfur (Sudan) was the first time the UN Security Council made use of this powers and sparked a controversy in doing so.

Many African states and NGOs are claiming that the ICC is following purely political motivations and is a neo-colonialist institution since there are so far only active investigations in Africa. Even though the ICC is also conducting preliminary investigations in Afghanisatan, Gaza, Georgia and Colombia, the UN Security Council referal has strengthened this perception among many critics of the ICC.

Thus many countries were opposed to giving the UN Security Council a role in deciding whether the crime of aggression has been triggered in a particular case. Since the Council decisons are politically biased due to the veto powers of the five permanent members, a stronger UN Security Council role automatically means a more politicised court.

The compromise reached im Kampala allows state parties to decide whether the court may act on the crime of aggression. It can only do so, where either the UN Security Council refers a matter to the ICC or the alleged aggressor and victim states are parties to the ICC treaty though. How this will play out in practice remains to be seen in the future. Since the ICC jurisdiction for the crime of aggression will come into force in 2017 earliest, we will probably have to wait for a while to see the results.

A positive result of the conference was that the UN Security Council was not chosen as the only trigger for the crime of aggression, a step that would have further politicised the court. Europe and Latin America have been two of the main blocks securing that the ICC remains an independent institution governed by legal decisions and not by political calculations.