Home > Academics > Concentrations > UNSP > Student Resources
Ambassador Lunch Series: International Criminal Court
By Setti-Semhal Petros and John Burnett
On December 1, 2009, as part of the Working Lunch Series with UN Ambassadors organized by the UN Studies Program, SIPA students had the opportunity to talk to Ambassador Wenaweser, the President of Assembly of State Parties to the Rome Statue of the ICC. Whilst at the Liechtenstein Mission, SIPA students and Ambassador Wenaweser discussed what the establishment of the ICC means to the international system and debated various issues including the Kampala Conference or the “Amendment Conference,” the peace and justice conundrum raised especially by the Sudan case, and the issue of ICC selectivity.
Ambassador Wenaweser believed questions regarding the ICC’s selectivity partly originate from misunderstandings of how the ICC’s jurisdiction is determined. As the Ambassador noted, the Court can not investigate crimes which occurred before July 2003. Also, it can only take on cases of states that are party to the Rome Statue, that is, cases involving a national of a state signatory that is either perpetrator of a crime, or cases concerning a crime committed in the territory of the state signatory. Therefore, not all incidences of human rights abuses can automatically be investigated by the ICC.
Ambassador Wenaweser suggested that perceptions of bias with ICC selectivity have more to do with the fact that all of its active investigations are in Africa. This is not to say that the ICC has an unfair bias, but rather that it is bound by the balance of power within the international system. It is fair to say that there are many ongoing conflicts in Africa, which make it more likely that the Court will be involved in future cases originating there. It is notable that some of these cases, including Uganda and the Democratic Republic of Congo, even invited the ICC to investigate and prosecute crimes. Also, the important fact that African States make up the majority of state signatories to the Rome Statue must be acknowledged; therefore squabbling over the non-universality of human rights values to African states is untenable. However, Ambassador Wenaweser quite candidly suggested he did not think some cases would ever be brought before the ICC. He cites how in the case of Sudan, the same Member States that believe the pursuit of justice would not derail the peace in that situation, often argue that in Gaza ICC investigations in actions by both Hamas or Israel would be counterproductive to peace. The overall result for the ICC is that if neither side of a conflict is a state signatory to the Rome Statue, the parties do not want the ICC to be brought in, the international community prefers the ICC was not involved, or similarly trusts that national procedures are sufficient for investigating/prosecuting crimes—the ICC will not be involved.
Sudan is a unique case whereby the UN Security Council referred the situation in Darfur to the ICC, for the first time. It is a case that some believe exemplifies the tension between the pursuit of justice and peace, whilst others believe it is a ruse by Bashir, a leader who is afraid of answering for orchestrating massive human rights violations in his country. Ambassador Wenaweser and those from the Office of the Prosecutor, like Richard Goldstone, defend the ICC’s independence and the need for its continued independence. The pursuit of justice may be inconvenient, according to Ambassador Wenaweser, but as the case of Milosevic shows it need not devastate the peace process. However, conjecture is not enough to satisfy members of the African Union nor the Arab League who believe removing a sitting head of state would be detrimental to peace in Sudan, and subsequently requested an Article 16 stay of Bashir’s indictment. Many view the lack of consensus that has been building in the region before the ICC’s pronouncement as the true cause of the backlash against the ICC; although the ICC would prefer to see itself as an independent body, it is deeply mired in a political, international system that it needs to navigate to be effective.
The Kampala Conference in May 2010 will be at once an opportunity for Member States to the Rome Statue to look back on the work of the ICC since its inception 7 years ago, and at the same time look into its future. Kampala is meant to be a “two track” amendment conference, according to Ambassador Wenaweser, during which issues like the ICC having jurisdiction over crimes of aggression - which was not addressed during the creation of the Rome Statue – can be addressed. Other “track one” amendments that did not make it to the agenda for the conference include, jurisdiction over terrorism, nuclear weapons, and drug trafficking. On the agenda for “second track” amendments is a general assessment of the ICC’s operations, through which the tension between peace and justice can be reviewed.
Ambassador Wenaweser is optimistic in regards to the Kampala conference and where the ICC will be heading in the future. He believes those issues on the agenda, like crimes of aggression, will lead to a negotiated amendment since so much work has all ready been done on creating consensus around a definition of such a crime. However, it is unclear what either the first or second track amendments will produce. On a pragmatic note, even if amendments defining crimes of aggression within ICC jurisdiction are adopted, many UN Member States are wary of the UNSC deciding when a crime of aggression has occurred, a necessary step before the ICC can become involved. There is a growing awareness that the ICC’s effectiveness lies in developing the capacity of States’ national justice systems, thus perhaps we will see more second track amendments towards that endeavor. Yet, are not these tasks already relegated to UN agencies which States are already funding?
As the first UN Ambassador lunch series drew to a close, it was clear that the ICC has done much in battling impunity and prosecuting massive human rights violations. However, it was also clear that debate surrounding the ICC’s selectivity, and the tension between peace and justice, would continue to unfold as the ICC expanded its jurisdiction to crimes of aggression—providing new food for new debates.