Skeptics predicted failure. But by July 2002, 60 States had ratified the Rome Statute and the International Criminal Court (“ICC”) became operational. At the end of this month, state representatives will gather once again, this time in Kampala, Uganda.
They will take stock of a system that represents one of the greatest advances in international law. Crucially, they will discuss how to build on the ICC’s success to ensure that atrocities are reliably followed by justice and justice by sustainable peace.
Over half the states in the world have rushed to join the Rome Statute, including all countries of South America and the European Union, and 30 African states, which now form the largest regional bloc. Bangladesh’s recent ratification of the Rome Statute brought the number of treaty parties to 111.
Growing membership has expanded the ICC’s jurisdiction, which is restricted to alleged crimes committed on the territory of a state party or by the national of a state party.
The ICC is currently dealing with five situations: the Democratic Republic of the Congo, Northern Uganda, the Central African Republic, the Darfur region of Sudan, and Kenya. The first three situations were referred to the ICC by the governments of those states and Darfur by the UN Security Council.
The ICC Prosecutor requested the Kenya investigation, which recently began following approval by a panel of judges. Two trials are underway, and a third is scheduled to begin in July. Although trials only began in 2009, some independent observers, including the United Nations, have concluded that the threat of prosecution at the ICC may already have deterred some crimes.
Although it is obviously difficult to prove a negative, this would already be a success. But more must be done.
Diplomats gathering in Kampala will consider amendments to the Rome Statute on such items as the crime of aggression. The ICC takes no position on these issues, but is engaged on the crucial stock-taking exercise that will plan the future of international criminal justice in key areas.
Under the Rome Statute, states retain primary responsibility for investigating and prosecuting atrocity crimes. The ICC only has jurisdiction when states are unwilling or unable to do so; it is a court of last resort.
New efforts are needed to build the will and capacity of domestic systems so that the promise of justice becomes more comprehensive and ICC action is unnecessary.
The ICC has no police or army and fully relies on states for cooperation to enforce its arrest warrants and other decisions. Cooperation has been generally forthcoming, but improvements would enhance judicial efficiency. In Kampala, states can define their challenges in providing cooperation and assistance and then actions to meet these.
The Review Conference offers an opportunity for victims and affected communities to make their voices heard on these and other issues. How the Rome Statute system as a whole can better serve these constituencies is itself a topic of the stock-taking.
States could pledge to make new contributions to the Victims Trust Fund, the body that uses donations and judicially ordered reparations to administer projects that benefit victims and their communities.
The court also faces ongoing challenges in ensuring that its work is understood in affected communities – an imperative if justice is to contribute to healing and the deterrence of crime. In Kampala, states could pledge to undertake or support new efforts in this regard.
I look to Kampala with a sense of optimism. Ahead of the conference, states have initiated a pledge system. They have an opportunity to make tangible and ambitious commitments in each area of the stock-taking, and then set to work to implement them once the conference is over.
By building on the system of justice born in Rome, states can take another bold step to ensure that the rule of law prevails precisely when it comes to the most horrific of crimes. If states succeed, they will instill new hope that the present century can be markedly more peaceful than the last.
The author is a Judge and President of the International Criminal Court