JURIST Guest Columnist Chandra Lekha Sriram of the University of East London says that a stocktaking of the impact of the ICC thus far should have been given priority during the ICC review conference given that this is likely to shape perceptions of the court for years to come….

The first major review conference of the International Criminal Court (ICC), was held 31 May-11 June in most inapposite settings: at a luxury resort on the shores of Lake Victoria outside Kampala. However, bucolic setting aside, the first major review conference of the International Criminal Court (ICC) had serious business on its agenda.

The conference engaged in a wide-ranging stocktaking of the operation of the court to date, as well as considering significant amendments to the statute. It has considered the relation between peace and justice, the impact of the ICC on victims and other affected communities, ways in which national jurisdictions can be supported in addressing violations which would otherwise be under the jurisdiction of the court, and the addition of the use of certain categories of weapons as war crimes in internal conflict. However, it is the treatment of the crime of aggression–discussion of which began late last week–that is being treated as “the main event,” which is something of a shame. The stocktaking of the effects of the court to date should be viewed as equally important, given that this is likely to shape perceptions of the court for years to come.

While defining the crime of aggression and determining who can trigger or restrain (filter) an application is undoubtedly important, so too were the other items on the agenda for the two weeks of this conference. A number of critical issues have been underreported in the international press, save for notional attention to the major speeches of senior figures such as the Secretary-General of the United Nations and the Prosecutor of the ICC which touched on them. It is these issues, and not the as-yet unprosecutable crime of aggression, which will continue shape the impact of the ICC and perceptions of its legitimacy.

The ICC and its advocates have pinned their hopes for its legitimacy and legacy on its effects at various levels. It is expected to help promote peace and deter future crimes; it is expected through complementarity to promote national efforts at accountability; and it is expected to have a positive impact for victims. All of these are laudable goals. However, the discussions, and the draft resolutions on these topics, included precious little by way of specifics. Take, for example, the discussion of the impact of the court on victims. This is relatively novel for international criminal tribunals in that it has a victims’ trust fund, to which states can contribute and into which fines imposed on some convicted will be deposited. However, the actual effects of this remain to be assessed; a conference engaged in stock-taking might have done this and more. Indeed, there remains confusion among many with regard to who counts as a victim for the court: for actual trial proceedings it is clearly victims of the named accused, while for the victims’ trust fund it is potentially rather wider.

Similarly, with regard to the impact of the court on peace and justice, and the actual operation of complementarity, discussions have been unfortunately vague. Interventions have posited the opposition of peace and justice, with delegates simultaneously asserting that peace and justice might in fact be consistent, without offering specifics. Sitting in Uganda, with debates about the impact of the court on peace negotiations with the Lord’s Resistance Army continuing to reverberate, this seems a missed opportunity.

Complementarity, the principle that the court will not exercise jurisdiction unless the state in question is genuinely unable or unwilling to conduct investigations or prosecutions, has been re-cast by the prosecutor of the ICC, in a move embraced by party states, as “positive complementarity“. This is the idea that the court can and should help to promote investigation and prosecution by affected states, and even promote national capacity. Yet precisely what this means seems to be a matter of some confusion, as the prosecutor’s promotion of a failed “three pronged strategy” of commission of inquiry, local tribunal, and ICC prosecutions for Kenya seems to demonstrate. Yet the discussion of positive complementarity has been largely vague and self-congratulatory, with no recognition of the ways in which governments such as those in Kenya may seek to use this conception to evade ICC scrutiny.

As if to demonstrate the failure of positive complementarity, two competing delegations from Kenya (only one formally recognized), which is the subject of ICC investigation in relation to post-election violence, held competing press conferences and shouted at one another at the review conference last Thursday, while ostensibly discussing Kenya’s cooperation with the court.

Should the review conference be judged on its stock-taking activities alone, it could well be judged a missed opportunity.

Chandra Lekha Sriram is a Professor of Human Rights at the Centre on Human Rights in Conflict of the University of East London. She can be reached by e-mail at c.sriram@uel.ac.uk