Extended jurisdiction

When the International Criminal Court (ICC) opened for business in the Hague back in 2002, the message was clear: it was the beginning of the end of impunity for the perpetrators of war crimes, genocide and other crimes against humanity.

So far, the ICC has begun investigations into situations in five countries, all of them African. And that has led to cries of imbalance from countries in the African Union.

But president of the chamber of preliminary proceedings in the Hague, German judge Hans Peter Kaul says there is nothing unfair about the cases the court has chosen to pursue.

“There are very simple reasons why crimes in Uganda, the Democratic Republic of the Congo and in the Central African Republic are being investigated.”

In the three examples Kaul cites, the governments themselves referred them to the ICC because they recognised a need for help in processing crimes committed on their turf.

Cautious optimism

Nonetheless, the process of pinpointing individual perpetrators is difficult, not least because it is simultaneously a judgement on the misconduct of the relevant nation.

Which is why some states feel an extended jurisdiction of the court could encroach on their sovereignty. Not least when the proposed extension relates to the contentious issue of crimes of aggression.

While the ICC officially has jurisdiction over state aggression, the 111 member states have never formally agreed on the definition of the crime. It is hoped they will do so during the Kampala conference.

Speaking ahead of the meeting, President of the ICC's Assembly of State Parties, Christian Wenaweser said he was "cautiously optimistic" that member states could reach a deal on the controversial issue.

He said it would be "a significant step forward in the development of international law and an important extension of the court's jurisdiction."

Definitive definition

Informally delegates have agreed that only state and army leaders could be indicted and only if the war of aggression were in breach of the UN charter.

But the real challenge is to determine who has the power to decide whether a war is just and initiate an investigation accordingly.

France, England and the US say the job should fall to the UN Security Council. But as Wenaweser explains, not everyone wants the same thing.

"Some countries view it as an exclusive Security Council right," he said. "But others say it would lead to the politicisation of the ICC."

In the case of the former, the five permanent members of the Security Council, the US, Russia, China, France and England could stop the ICC from indicting their own citizens or their allies by using their power of veto.

Until now Germany has been opposed to such a role for the Security Council. But there are others in Kampala who are for it, so for the time being it's a case of wait and see.

Author: Ulrike Mast-Kirschning (tkw)
Editor: Rob Turner