The main items on the agenda focused on a stocktaking of international Criminal Justice in four areas, namely, the impact of the Rome Statute on victims, complementarity, international co-operation and 'peace and justice'. Additionally, the RevCon considered amendments to the Rome Statute dealing with the Crime of Aggression.
Stocktaking
On the issue of stocktaking, the RevCon adopted two resolutions, one high declaration and summaries of discussions. The Resolution on the issue of complementarity reiterated the primary responsibility of states to prosecute crimes enshrined under the Rome Statute at the national level; those of crimes against humanity, war crimes and genocide. At the same time the RevCon called on states parties, civil society and international organisations to work together in closer partnership to build national capacities to close the impunity gap in order to realise the Rome regime and complementarity.
Victims
On the Resolution on Victims, the RevCon recognised the innovation of the Rome Statute in allowing victims to participate in proceedings for the first time in international criminal proceedings, while calling for greater outreach efforts by the Court as well as tribal and religious leaders in respect of women and children who had suffered violence, in order to inform them of their rights of participation and to potentially receive reparations. It was observed that until the creation of the Rome Statute victims had been talked about in legal proceedings, but after the Rome Statute they began to speak for themselves.
Co-operation
On the issue of co-operation, the RevCon passed a high declaration emphasising the critical need for the Court to receive diplomatic, financial, logistical and political co-operation from both states parties and, where appropriate, non-states parties to fulfil its mandate, otherwise the Court would fail. States were reminded that domestication of the Rome Statute through implementing legislation was the most effective and comprehensive way to ensure full co-operation for the Court. It was stressed that without arrest and surrender of the outstanding fugitives, the Court would become a 'white elephant' sitting in The Hague and its deterrence effect would be severely compromised. States were requested to share best practice through dialogue to collectively enhance their co-operation with the Court and to bring fugitives to justice.
Peace and justice
On the issue of peace and justice the RevCon welcomed the fact that the debate had moved on from 'peace versus justice' to a more positive debate around 'peace and justice' and that more careful sequencing could help to address many of the concerns around the apparent tensions. It was also noted that mediators needed to negotiate mindful of the fact that interlocutors might face potential indictments in the future and that the use of amnesties were no longer recognised at the international level.
Crime of aggression
The RevCon adopted a resolution by which it amended the Rome Statute to adopt the Crime of Aggression and the conditions under which the Court could exercise such jurisdiction. The actual exercise of jurisdiction is subject to a decision to be taken after 1 January 2017. The RevCon agreed to define aggression as a crime committed by a political or military leader which by its character, gravity and scale constituted a manifest violation of the UN Charter. Regarding the exercise of jurisdiction, it was agreed that a situation appearing to constitute a crime of aggression could be referred to the UN Security Council (UNSC) for determination, regardless of whether it involved a State or non-State Party to the Rome Statute.
Mindful of the primary role of the UNSC in maintaining international peace and security pursuant to article 39 of the UN Charter, the RevCon decided that in the absence of a determination of aggression by the UNSC, the Prosecutor would be entitled to initiate an investigation proprio motu or upon request from a state party, where authorisation has been given from the Pre-Trial Division. In these circumstances, the Court would not have jurisdiction in respect of crimes of aggression committed on the territory of non-states parties, or by their nationals, or with regard to states parties that do not accept the jurisdiction of the Court over the crime of aggression.
What next?
Post-Kampala, the challenge remains for the Court to actively secure ratifications from those countries which remain outside of the Rome Statute, together with assisting with implementing legislation. The Commonwealth Secretariat continues to help in this challenge through actively pursuing its Law Ministers' mandate to promote the ratification and implementation of the Rome Statute in order to fight impunity and to build national criminal justice systems to prosecute ICC and other complex transnational crimes.
Only in this way will 'universality' of the Rome Statute be fully achieved and the impunity gap closed. States also need to help the Court fulfil its mandate by raising awareness of the Court's function and providing timely co-operation together with diplomatic and political support, so as to properly mainstream the ICC both domestically and throughout the international peace and security landscape.
- Akbar Khan is Director of Legal and Constitutional Affairs at the Commonwealth Secretariat.