The ongoing ICC review conference (31st May to 11th June 2010) in Kampala will discuss amendments to the Rome statute. The discussion will encompass the definition of the crime of aggression, the amendment to Article 124 that allows a new state party to the ICC statute to opt for excluding from the Court’s jurisdiction war crimes allegedly committed by its nationals or on its territory for a period of seven years, and the possible expansion of Article 8 on the definition of war crimes.

The delegates will take stock of international justice, state co-operation, complimentarity, the peace and justice and the impact of the court on victims and affected communities. The other three stock taking issues only work to buttress the last one-how the court has impacted victims and affected communities. There is therefore a need by the delegates to address the same deeply.

The ICC statute in its preamble posits that the court will be an instrument to fight impunity in the world. It is noteworthy that impunity which is inclusive of war crimes, crimes against humanity, genocide, and maybe aggression affects for the greater part the victims and affected communities. It is therefore important that the ICC state delegates address the interests of victims and affected communities with great concern. The court needs to take into concern the following:

The Justice needs of the victims

The pre-occupation of international justice has been the trial of those who commit crimes. Most trials at the international arena just focus on the perpetrators in utter disregard of what the victims feel about the entire process, apart from victims participating as witnesses. The Rome statute system tries to address this lacuna by setting up a victim’s trust fund, a witness protection unit and continues to engage victims as witnesses. This should not be the end of the process of engaging victims on what affects them most; the effects of war on the victims are many and there is a need to address the desire for reparations, psychosocial support and legal aid.

The international justice model is crafted and formulated on retribution. It does not cover reconciliation. Most African countries where the ICC is involved have strong traditional justice mechanisms that have been advocated for above the ICC. In northern Uganda, surveys conducted revealed that some of the victims thought that ‘mato oput’ would be a viable option in the trial of Kony and others. The ICC cannot ignore such views on traditional Justice Mechanisms. The earlier it addresses the same by finding ways to handle this potential rival to its process, the better.

National institutions

It is noteworthy that the ICC is one of last resort. It only comes in when a state is unable or unwilling to prosecute crimes occurring in its territory. In Uganda, the war crimes division of the High court has been established after the enactment of the International Crimes Act (yet to be assented to by the President.) the Act proscribes the gravest punishment to be life imprisonment. Under our Penal code, the Death Penalty still exists as one of the punishments for certain crimes. Crimes considered in the International crimes act are considered graver than those under our penal code. It would be disingenuous to subject persons who commit graver crimes to lesser punishment and vice versa as this in the long term impacts the credibility of the trials and renders the entire process a sham. The Assembly of state parties must therefore ensure that National institutions are strengthened by ironing out such contradictions, training and equipping local Judicial institutions to make victims believe in the process.

The court needs to strengthen outreach to areas affected by conflict as well as areas where the conflict may not have reached. This will in the long run be of benefit to the victims since it will not only create general awareness about the process but also provide greater avenues for engagement and assessing their justice needs, a factor that will lead to greater confidence in the court since Justice is not only in the outcome but is also in the process.

The ICC has only arrested few suspects. The rest of the people on whom arrest warrants have been issued are free and roaming. There is need to have constructive engagement with states and supranational bodies like the African Union to bring the suspects to trial. Failure to arrest and try those alleged to have committed crimes creates unnecessary expectation in the minds of victims as to whether accountability and Justice will be achieved.

As the delegates take on this important task of reviewing one of the most important Statutes in international justice and human history, it is an important time to reflect on the needs of those for whom the ICC was created-the victims. The inability to do this will only make it just a conference that passed like many others.

By Stephen Tumwesigye.

Legal Associate with the Uganda Coalition on the International Criminal Court (UCICC.)