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International Criminal Justice scores a point

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03.06.08 | 14:26

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Interview by Isolda Agazzi/Human Rights Tribune- The ICC was set up six years ago but until recently had not arrested any figure of note. The arrest, therefore, on the 24th May in Brussels of Jean Pierre Bemba came as a surprise and represents significant progress. The former vice President of the Democratic Republic of Congo is accused of war crimes and crimes against humanity as a result of acts committed by his men in Central Africa in 2002 and 2003. Geneva barrister Philip Grant welcomes his arrest as a positive move forward but believes the real turning point will come next year when the ICC outlines new crimes under its jurisdiction such as aggression.

Is the arrest of Jean Pierre Bemba a turning point in the work of the ICC?

NGOs see it as a positive move as it shows that the Chief Prosecutor can issue arrest warrants for major players. Until now he has only indicted two relatively junior people linked to the atrocities in Darfur, while in the Democratic Republic of Congo, militia leaders were accused of less serious crimes. Before Bemba’s arrest we were disappointed. The court had only prosecuted 11 people in six years - a rather feeble record given the 450 million dollars it has spent.

Currently four investigations are going on: in Darfur, the Democratic Republic of Congo and in the Central African Republic. The Chief Prosecutor is extremely reticent about communicating publicly and he has been criticised for failing to communicate the work of the Court. But Bemba’s was a positive surprise and perhaps there are other investigations underway and secret indictments we don’t know about. The only thing we do know is that the Prosecutor is checking the admissibility of three other cases.

What is going to happen now?

If Bemba’s does signal a positive step forward, the real turning point will be the conference to revise the treaty, which is scheduled for next year and which is going to define the crime of aggression. Article 5 of the Statute of Rome (which established the ICC) envisages that the competence of the Court is limited to the most serious crimes such as genocide, crimes against humanity, crimes of war and aggression. But when the statute was adopted in 1998, states decided to postpone a decision on defining aggression.

Certainly the UN charter defines aggression as any attack against another state which doesn’t have the support of the Security Council or doesn’t involve legitimate defence. But the court does not apply the charter - it applies its statute. And in the context of the war against terrorism, defining this crime is becoming more and more difficult. Some lawyers see the war in Iraq as aggression and they would like to see Tony Blair in the dock as the UK, unlike the US, is party to the ICC. There will be a lot of opposition to this. But who knows? In the very near future, an electronic war or the act of causing a tornado to strike a neighbour could be considered aggression.

And even if states manage to come up with a definition, they must still agree on who is competent to refer the matter to the ICC. Until now, it has been either countries, the Court Prosecutor or the UN Security Council. But for the crime of aggression, it might well be the Security Council or the UN General Assembly.

Could there be other developments ?

Yes, since states can propose other amendments such as the crime against terrorism, which had a precedent in setting up the special tribunal to judge those who killed former Lebanese Prime Minister (Rafik) Hariri. As for humanitarian intervention, it could be seen as an exception to the crime of aggression. But any amendment would be difficult to apply as it requires the ratification of 7/8ths of the state parties.

The court has only issued indictments for crimes in Africa. Is this a case of double standards?

I don’t think so as it is African leaders that asked the court to intervene. What is more, most wars happen in Africa and many African states have quite freely ratified the Court’s statute.

Apart from the Court, many see this concept of universal competence in terms of North-South justice. What is your view?

I don’t agree, particularly in that neo-imperialist actors don’t support the process of international justice. In Latin America there have been some very interesting lessons learnt about recourse to the process of universal competence. The return of Pinochet to his country got the justice system going and ensured that Chile took on board its responsibilities. Today, hundreds of trials are underway in Chile and Argentina. The wall of impunity has collapsed and the current Argentinian President has at last abolished the country’s amnesty laws.

What about the principle of universal compentence in Switzerland?

If Switzerland is one of the most forward thinking countries with regard to the ICC, it does not mean that it applies the principle of universal competence. This principle allows the prosecution of someone suspected of committing genocide, war crimes and crimes against humanity in whatever country, regardless of his nationality and that of his victims and of the place where the alleged crimes took place.

The principle is not very clear in Switzerland as responsibility is shared between cantonal prosecutors, the Confederation Attorney General and the military prosecutor. But the government has just adopted a law that aims to insure that Swiss law is in line with the statute of Rome. It is a law that is going to be useful for applying universal competence as it will ensure that certain crimes and the rules of responsibility are correctly defined.

TRIAL is a Swiss organisation set up in 2002 to fight against impunity in Swiss courts and at the international criminal court. It has lodged various cases relating to universal competency. Complaints have led to several trials, notably against a Bosnian Serb and a Rwandan and others.

Translated from the French by Claire Doole

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