ICC members reach consensus to activate crime of aggression

Sunday December 17 2017

Members of Burundi's lower house of parliament raise their arms to vote on October 12, 2016 in Bujumbura to withdraw from the International Criminal Court.

Members of Burundi's lower house of parliament raise their arms to vote on October 12, 2016 in Bujumbura to withdraw from the International Criminal Court. PHOTO | VONESPHORE NIBIGIRA | AFP 

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A mid the ongoing domestic difficulties, the two-week Assembly of State Parties ended in New York last week, where the main highlight was the adoption of a resolution that would bring into force the crime of aggression under the Rome Statute.

For a change, no discussion on Kenya took place during the Assembly. On an annual basis until 2016, debates on the Kenyan cases before the International Criminal Court had come to provide the general narrative under which the Assembly met. 

Other highlights of the Assembly included the retirement of Senegalese Justice Minister Sidiki Kaba as president of the Assembly at the end of his term, and the election of South Korea’s O-Gon Kwon in his place, as well as two vice-presidents.

Six new ICC judges were elected, five of them women, including Uganda’s Solomy Bossa, until then a judge in her country and previously president of the East Africa Law Society.


The Assembly also adopted a 2018 budget of €147.431 million, for the court, which represents an increase of just 1.47 per cent.

This will leave the court in a tight financial position, especially with the possibility of new investigations next year.

Kenya had a low-key delegation, consisting of New York-based officials, led by Deputy Representative to the UN Koki Muli in the absence of her boss, Macharia Kamau, who was said to have travelled back home.

As has become the tradition, Kenyan civil society organisations attended the Assembly, and representatives of the coalition known as Kenyans for Peace with Truth Justice, which for the last 10 years has campaigned for accountability for crimes committed in Kenya in 2007, was given two opportunities to address the plenary.


Kenya somewhat still featured in New York, following the election of Margaret Shava, a relation of President Uhuru Kenyatta, to the Budget and Finance Committee of the Assembly.

Previously a member of the Truth Justice and Reconciliation Commission, Shava was one of the five members of the commission reported to have been involved in machinations that led to changes being made to the final report of the commission using a procedure that was a departure from what had been agreed on.

The purpose of the changes was to exclude from the final report adverse references to the Kenyatta family in relation to dealings in land.

Thereafter, although shortlisted for appointment as a member of the Independent Electoral and Boundaries Commission during interviews held in November 2016, Shava was ultimately not appointed. A number of civil society organisations have expressed concern over her election to the Budget Committee, because her record suggests a lack of independence. 

In a historic development, the Assembly reached a consensus decision to activate the crime of aggression, whose definition and method of enforcement was not originally provided in the Rome Statute when it came into force.


Thereafter, the Review Conference of the Rome Statute, held in 2010 in Uganda, adopted amendments which defined the crime of aggression and stipulated the manner in which the court could exercise jurisdiction over the crime.

The procedure adopted required the ratification of member states of these amendments and provided that the court may exercise jurisdiction over the crime of aggression after January 1, 2017, once 30 states parties had ratified the changes, and subject to a decision by the Assembly to activate that jurisdiction.

By the time of the Assembly, 35 states had already ratified the Kampala amendments to the crime of aggression, setting the stage for activating the crime. It is this decision that was made in New York last week.

With the shadow of the recent fights with Kenya still looming large, the Assembly provided opportunity for debate on the relations between Africa and the ICC.

During the previous Assembly at The Hague in 2016, relations between African member states and the ICC had reached a new bottom, with Burundi, South Africa and the Gambia threatening to leave the Rome Statute, as part of a feared mass withdrawal by African member states.


While Burundi eventually carried out its threat, the Gambia has since reversed the decision, particularly after the exit of strongman Yaya Jammeh. It is now a strong supporter of the court. As part of its support for the court, the Gambia has promised to domesticate the Rome Statute and champion a campaign for its ratification.

Despite hostile rhetoric against the court, South Africa has not made good the threat to withdraw, in part because of the decisions of its judiciary constituting domestic opposition to the plans to leave the ICC. 

In New York last week, South African Justice Minister Tshililo Masutha reiterated the position taken during the previous Assembly in 2016, of his country’s intention to withdraw from ICC.

However, with national elections taking place in South Africa, the future relationship with the court will probably hinge on the results of those elections and for now, the threat of a withdrawal is unlikely to materialise.


What is clear after the Assembly in New York is that the threat of a mass withdrawal has been contained for now, and that if any African country decides to leave the court, it is likely to be an individual rather than group decision.

Only last month, representatives of the court held a retreat in Addis Ababa, with 19 of the African member states to the Rome Statute, which was also attended by the African Union.

The meeting suggests that dialogue, rather than confrontation, is likely to characterise the future relations between the court and its African member states.

In some quarters, the decision to push forward Shava’s candidature to the Budget Committee is viewed as being consistent with the position that Nairobi intends to remain a member of the ICC, but would like to push close political confidantes to any positions that arise within the structure of the court.

The clear sense one got in New York is that, freed of the Kenyan cases, Africa now feels at liberty to chart a new relationship with ICC.