ASP Selects Kampala as Venue for Review Conference and Elects Judges
Refugee Rights News
February 2009
The annual meeting of the Assembly of States Parties (ASP) of the International Criminal Court (ICC) was held from 14 to 22 November in The Hague and resumed in New York during the week of 19 January, and from 9 to 13 February. This was the seventh gathering of the body mandated by Article 112 of the Rome Statute to supervise and observe the Court.
The ASP includes all countries that have ratified the Rome Statute. It has a Bureau consisting of a President, two Vice-Presidents and 18 members elected to three-year terms. Its broad mandate includes overseeing the administration of the Court; creating and voting on necessary texts to ensure the effective functioning of the Court; establishing the Court’s budget; electing Judges and Prosecutors; and establishing bodies to ensure the optimal functioning of the Court.
In addition to oversight-related activities, the major action items on the Assembly’s agenda for its seventh session were the adoption of the budget for the ICC’s seventh fiscal year; the election of the ASP Bureau’s two vice-presidents and 18 members; deliberations of the Special Working Group on the Crime of Aggression, which is working on a definition of the crime for inclusion in the Rome Statute; matters related to the Court’s permanent premises; the Review Conference; and judicial elections. This article will focus on the latter two agenda items: the Assembly’s venue selection for the conference at which states parties will review the Rome Statute, and the election of judges.
Rome Statute Review Conference
The Review Conference, mandated by Article 123 of the Rome Statute, is a special meeting of states parties to the ICC to review the Rome Statute and consider amendments to it. It will take place during the first half of 2010 for between five and ten days. There is not yet an agenda for the conference, however it will likely focus on adopting a definition for the crime of aggression (which was included in the Rome Statute subject to an agreement by states at a later date of a definition). In the words of Joseph Manoba of the Ugandan Coalition for the International Criminal Court, “[t]he Review Conference will be an opportunity to demonstrate that member states are concerned with the crime of aggression and considerable efforts have been made to criminalise it.”
The review conference will also likely review Article 124, an optional protocol allowing states not to subject their nationals to the ICC’s war crimes jurisdiction for seven years from ratification. Finally, pursuant to a recommendation of the 1998 Rome Statute drafting conference, the Review Conference may consider the addition of terrorism and drug crimes to the list of crimes within ICC jurisdiction. The Review Conference will also be an opportunity for taking stock of the progress of the Court as a whole.
Uganda Selected as Host for ICC Review Conference
On 21 November 2008, the Assembly selected Kampala, Uganda as the venue for the Review Conference. Uganda had mounted its bid to host the Review Conference at the sixth session of the ASP in 2007. It noted that holding the Review Conference in Uganda would represent an opportunity to conduct outreach in Great Lakes region of Africa, where all of the ICC’s current situations are located. The bid itself highlighted Uganda’s capacity – in terms of, among other things, accommodation, facilities, security and transportation – to host the conference, citing the 2007 Commonwealth Heads of Government Meeting successfully hosted by Kampala as precedent. While Uganda certainly has the infrastructural and logistical capacity to host the conference, some actors have voiced concerns about the choice of Kampala as venue, because Uganda has yet to domesticate the Rome Statute, and because it is the site of an ongoing ICC investigation.
Uganda’s bill to domesticate the Rome Statute has been pending in parliament since 2006. The Assembly therefore runs the risk of hosting the Review Conference in a country that has not operationalised the principle of complementarity, one of the core elements of the ICC system. According to Article 17 of the Rome Statute, a case is inadmissible before the ICC where it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.” Complementarity is based on respect for the primary jurisdiction of states and is designed to promote the ability of national jurisdictions to stamp out impunity. Complementarity encourages states to adopt legal mechanisms to prosecute international crimes domestically. Until Uganda’s ICC Bill is adopted, it will not have that ability. There is thus the possibility that the conference to review a key legal instrument in the fight against impunity will take place in a legal climate tolerant of it.
It is possible, however, that the choice of Kampala as venue for the Review Conference will motivate Uganda to domesticate the Rome Statue, as may have been the case with respect to the country’s ratification of the Agreement on Privileges and Immunities of the ICC (APIC) on 21 January. The APIC provides officials and staff of Court with privileges and immunities necessary for them to perform their duties in an independent and unconditional manner. It is a separate international treaty open for signature and ratification by all states, not just states parties to the Rome Statute. Uganda’s ratification will provide ICC officials traveling to Uganda for the Review Conference with the privileges and immunities conferred by the APIC. Furthermore, proponents of Kampala argue that holding the Review Conference in a situation country represents an opportunity to bring the Court closer to the victims it is meant to serve.
A further concern related to holding the Rome Statute Review Conference in Uganda is the possibility that the ongoing ICC investigation there may be perceived as further compromised by critics of the investigation. The perception that there is a close relationship between the ICC and the government of Uganda has already been cited as an explanation for why the Court has so far not indicted any Ugandan government officials. The announcement of the opening of the investigation in Uganda was made, for example, at a joint 2004 London press conference with the government of Uganda. ICC Prosecutor Luis Moreno-Ocampo and the President of Uganda Yoweri Museveni appeared together, creating concerns that there was a close relationship between the Court and the government which could preclude any meaningful investigation of government crimes. While the ICC Prosecutor has explained that Ugandan officials have not been indicted because their alleged crimes do not meet the Rome Statute’s gravity threshold and/or because they have already been brought to justice in military tribunals, holding the Review Conference in Kampala may further the perception that Uganda and the ICC have a special relationship and that the ICC’s work in Uganda is politically biased. States parties at the seventh session of the Assembly must have been mindful of such concerns. The election of Kampala came with a caveat: it will host only as long as it “does not constitute a risk to the operations of the Court or the success of the conference,” in which case the conference will be held in an alternative venue, likely in Argentina.
Reacting positively to the choice of Kampala, Joseph Manoba of the Ugandan Coalition for the ICC said:
the Uganda Coalition for the ICC applauds the decision by the ASP to nominate Kampala as the host of the first ever Rome Statute review conference. The decision obligates the government of Uganda to domesticate the Rome Treaty and thus may act as a stimulus factor in the process of domesticating the Statute. The Review Conference also presents an opportunity for civil society groups and the population to engage at several stages. For example, the UCICC hopes to see organizations participating in activities akin to the People’s Space at the Commonwealth Heads of Government Meeting. The People’s Space was a space within the civil society Commonwealth Peoples’ Forum for less formal interaction among peoples of the Commonwealth through music, drama, dance, exposition and discussions. The space hosted cultural performances, mini-workshops, films and other multi-media presentations. It is equally an opportunity for the population to appreciate that the ICC is not a Western imposition but a community of states, the majority of which are African, and independent of political interferences in contrast to the local judiciary. The negative perceptions associated with the Court may be addressed with good outreach at the occasion. The definition of the crime of aggression is another important aspect of the Review Conference.
Election of Judges
In addition to selecting Kampala as the venue for the Review Conference, at the first resumption of its seventh session the ASP also elected six judges to the ICC bench. The newly elected judges, who will serve for a period of nine years, will fill the vacancies left by judges whose terms will end in March. The Assembly elected, by two thirds majority for each candidate, Christine Van Den Wyngaert of Belgium, Sanji Monageng of Botswana, Mohamed Shahabuddeen of Guyana (who has since resigned for personal reasons), Cuno Tarfusser of Italy, Fumiko Saiga of Japan and Joyce Aluoch of Kenya. In addition to the candidates who were ultimately elected, candidates were also put forward by Bosnia and Herzegovina, Burkina Faso, Democratic Republic of Congo, Ecuador, Gambia, Greece, Madagascar, the Netherlands, Nigeria, Senegal, Sierra Leone and South Africa.
The seventh session of ASP gathered for its second resumption during the week of 9 February in New York. The eighth session will be held from 18 until 26 November 2009 in The Hague.