Can ICC stop impunity by leaders in power?

By Dicta Asiimwe

International Criminal Court prosecutor Luis Moreno Ocampo said the ICC would intervene to deliver the promise of non-repetition of conflicts and atrocities against humanity. He was addressing parliamentarians for global action at Parliament in Kampala on May 27. He promised to end impunity through the ICC. The statement ‘never again to impunity’ is the catch phrase for the ongoing review conference at Commonwealth Resort Munyonyo.

Christian Wenaweser, the president of Assembly of State Parties to the Rome Statute said the ICC is there to stop situations of genocide or the World War One from happening again. He said that after the World War One and the genocide in Rwanda in 1994, the world promised that such situations would never happen again. But after a short time, he said they forgot about their promises and ICC would stop this forgetfulness.

Can ICC prevent impunity or will it stay a reactionary court? The current practices suggest ICC will stay the latter, for a good time. For example according to the Rome Statute, the court can only investigate cases recommended by the Security Council, those recommended by member countries and others where the court is interested excluding victims against whom the crimes have been committed. Ordinary people cannot go to the ICC, present their cases and receive justice if they feel their countries did not deliver it.

Kennedy Graham, a New Zealand MP at the Munyonyo conference, said the ICC assumes the good faith of member states who have exhibited double standards when they are supposed to arrest international criminals.

By relying on member governments, the ICC is depending on the perpetrators or conspirators to end injustice. ‘We expect governments to seize the moment to step up their commitment to global justice,’ said Richard Dicker, international justice director at Human Rights Watch.

For example one of the reasons for the failure by ICC member countries to arrest Sudanese President Omar Al-Bashir is that the African Union at a summit in Libya in 2009 asked member countries who are members to the ICC not to apprehend him. Bashir now can travel to many African and Arab countries without fear of being arrested.

Member countries are ignoring the ICC because the court has failed to gain legitimacy, which they can only get through universality. If all members of the United Nations were members of the ICC, it would be much easier.

Graham also says the refusal to define the crime of aggression has denied the court universality and credibility. He said many countries in the Arab world have refused to become members of the ICC because the crime they are most interested in is aggression and yet the Rome Statute never defined it.

Due to lack of this definition some countries feel there is no point being members of ICC because they can try the other crimes in the Rome Statute in their national courts. It’s aggression where they need intervention from the international community.

Graham argues that by refusing to define the crime of aggression, ICC is showing double standards. He says aggression was defined after World War One and therefore there is no reason why the court does not adopt that definition it is provisions. He says power and politics have caused the refusal to define aggression.

He said what countries need to achieve through the ICC is to ensure rule of law supersedes power. Leaders in power protect themselves from prosecution under local laws. It’s only international justice institutions that can prevail on them.

‘Breaking the vicious cycle of international crimes and impunity requires credible national trials in addition to ICC trials in The Hague’ the Human Rights Watch said.

For example, opposition youth from the Interparty Cooperation in Uganda threatened to demonstrate at the ICC review conference venue if Ocampo did not give them feedback on their petition the ICC acknowledged receipt of on March 1, 2010. The youth, under ‘Youth for Human Rights’ petitioned the ICC to prosecute President Museveni, Maj. Gen. Kale Kayihura and Gen. Aronda Nyakairima for alleged atrocities against Ugandans.

According to the youth, the three ordered armed security forces to shoot to kill or maim, use live ammunition against unarmed civilians; committed political killings and killing of innocent civilians in the September 11 riots when the government blocked the Kabaka from going to Kayunga. The youth also argued that most of the people killed during the riots were bystanders and not rioters as the police boss alleged. To the youth, use of live ammunition against unarmed civilians is a crime against humanity.

According their chairperson Francis Mwijukye, they sought the intervention of the ICC since the local courts cannot handle them accused given their status. He said the police in Uganda cannot investigate a case against their Inspector General, the Chief of Defence Forces or the President.

Dr David Donat Cattin, director of Parliamentarians for Global Action (PGA), said the ICC could have overlooked the case because the September 11 killings are crimes under national law, not under the ICC jurisdiction. However, the ICC is investigating the killings that followed the election violence in Kenya. Is it double standards or is the Kenyan case different from Uganda’s?

Nine months after the September killings, the government has not given a report of who is responsible, despite the fact that the opposition shadow minister for internal affairs Hussein Kyanjo has persistently requested for it.

The ICC would not investigate the killings even if they fell under its jurisdiction because it needs Kampala as an ally in investigating and prosecuting the cases from the region such as the LRA that are pending in the court. That could be the ICC’s biggest dilemma why it cannot investigate the September killings in Kampala although they look much similar to those in Kenya in 2008.