Kampala Amendments to the ICC Statute
Status of the amendments
The Kampala Amendment to the ICC Statute is one of the landmark amendments that seek to give the International Criminal Court more power to deal with acts of aggression and crime against humanity. The amendment defined acts of aggression and crime of aggression. In order to understand the status of these amendments, it is important to appreciate the relevance of the definition given in reference to acts and the crime of aggression. The International Criminal Court has been experiencing problems with a clear definition of these terms when interpreting the law. The amendment has given the international court jurisdiction over the crime against humanity, such as genocide, including the crime of aggression.
Several nations have ratified this statute, giving it momentum towards its successful implementation. Many nations have realized the relevance of fighting acts of aggression and crime of aggression. The United Nations General Assembly has been at the forefront urging member countries to ratify the amendments in order to boost its implementations. The United States, though not a member state of the International Criminal Court, has pledged support for the Hague-based court in implementing the amendments made in Kampala in 2010.
Several member states have given their support for the Kampala amendments because of the reality of acts and crimes of aggressions that is becoming a reality in various parts of the world. This amendment has received massive support from several countries around the world. Liechtenstein, Samoa, Trinidad & Tobago ratified the amendments in 2012, while Germany, Luxembourg, Estonia, and Botswana ratified this amendment in 2013.
Several countries were slow to ratify the amendments because of various national issues. However, following the Russian aggression into Ukraine and annexation of Crimea, many countries have embraced the amendments. Currently, there are 14 states that have ratified the amendments, 7 of which are NATO member states. The latest state to ratify the amendments was Slovakia. Several countries in North America, South America, Europe, Asia, and Africa are at advanced stages of ratifying the amendments to bring it into force.
Many nations that had initially opposed the Kampala amendments have publicly stated their support for it through their foreign ministries and national assemblies. The amendments are coming into force, giving the International Criminal Court powers to prosecute individuals accused of the crime of aggression or acts of aggression. However, it is important to note that some of the major world powers like China and Russia have not given their express support for the amendments, a fact that has slowed its enforcement.
Implications of the amendments for U.S. military operations
The Kampala amendments will have direct implications on the United States military operations in various ways. Currently, the United States has its presence in various parts of the world. It has been active in Iraq, various parts of Asia, and in Africa. It has also been engaged in military activities with other NATO allies with the view of preventing the crime of aggression. The United States is the only Superpower country in the world following the collapse of the Soviet Union. This comes with a series of responsibilities that should be met by the military unit of this country. In the past, the United States military has experienced numerous challenges in its interventions to protect the sovereignty of various states around the world.
Many governments around the world look upon the United States for military protection when they come under aggression from external aggressors. At the same time, some governments have resisted military intervention of the United States when the case is about the crime of aggression. This contradictory approach to the military interventions has been a challenge to the legal and moral support that the military needs in their operations. This will definitely change with the ratification of the Kampala amendments. In analyzing the implications of this ratification, it would be important to focus on the current and future impacts.
Current implications
One of the current United States military operations that may be affected by the amendments is the War in Iraq. Started by the previous regime, the United States military operations are still active in this country. There has been a controversy over the legality of the US military on this foreign land. A section of the society and many governments in the Arab world have felt that the presence of the United States military is illegal.
The ratification of the amendments by the member states will give the US military a legal ground for their presence in this country. When the member countries ratify the amendments, they will be affirming that the crime of aggression is punishable by law, and any leader who perpetrates such crimes is not fit to rule. This will justify the need for the United States to move its forces to such countries with the view of protecting the sovereignty of the people.
The power should always be with the people, and whenever any leader subjects its own people to mass murders as was the case in Rwanda in 1994, the international society will be justified to intervene. This will also justify the move made by the United States military to kill Osama Bin Laden in 2011.
In 2011, NATO intervened in the Libyan revolution by deterring the government from using its state machinery against its own people. Such an act by the Libyan government would amount to the crime of aggression, which is a crime punishable by the International Criminal Court as per the Kampala amendments 2010. This justifies NATO interventions.
However, it is important to note that the amendments may limit the United States drone strikes, such as those that have been experienced in Yemen. The amendments prohibit any acts of aggression by one country against the other, especially through the form of coercion using military force. It can easily be interpreted that the US drone strikes in Yemen are a direct attempt by the United States to coerce the Yemen government to act in the interest of the United States.
The US military operations in Yemen, especially the use of the drone strikes, may meet very strong opposition if the United States cannot explain the specific acts of aggression or crime of aggressions that justifies the strikes. This may be aggravated by the claims that the drones have been causing civilian casualties. In light of these amendments, the United States may be forced to review its military operations in Yemen.
Future implication
It is expected that the Kampala amendments will have a massive impact on the future United States military operations. There has been the claim that Rwanda is supporting the M23 rebel movements accused of the crime of aggression in the Democratic Republic of Congo. According to the Kampala amendments, this amounts to acts of aggression. Rwanda can be viewed to be directly attacking the democratically elected government in Democratic Republic of Congo.
The United States has not responded to this directly, and the International Criminal Court has also ignored the role played by the Rwandan government in mass massacre in Eastern Congo due to the activities of M23. However, the United States may need to make direct military intervention in this war in order to protect innocent lives that are lost in this region.
The proposed US-UK response to Syria’s use of chemical weapons may be another that may be affected due to these amendments in the future. The international society, especially China and Russia, have been opposed to the response claiming that it amounts to infringement into the sovereignty of the country. However, this view may change with enforcement of the Kampala amendments. The response will be justified because the government will be liable to crime of aggression.
The International Criminal Court has been facing problems dealing with leaders convicted of crime against, but is still in power, just as the Syrian case. This amendment will justify the need for the international forces to intervene in order to protect the civilians. Another recent case has been the Russian invasion and annexation of Crimea. Russia has used the military force to invade Ukraine and annex part of it. Ukraine has been looking forward to a military support from the United States. The Kampala amendment justifies this military support because Russia has engaged in acts of aggression.
Amendments to the Rules of Procedure and Evidence Adopted by the ICC Assembly of States Parties
The amendments
In November 2013, the ICC Assembly States parties made a series of amendments to the rules of procedure and evidence in a move that has largely been seen as a blow against the Kampala amendments of 2010. There are amendments that were made which would affect the prosecutor, witnesses, victims, and the defendants. The following are some of the notable amendments that this assembly came up with during its November 2013 sitting.
Place of trial
Another major amendment that was made during the Assembly of member states meeting was on the place of trial. In the past, all the cases were conducted at the host state to the ICC which is Netherlands. However, the assembly made an amendment to rule 100 that permitted the court proceedings to take part in any other state other than the host state of ICC. By amending the rule, the ICC was mandated to conduct the part or whole cases in a state that would be convenient to the defendants, victims, witnesses, and the prosecutor.
Prior recoded statements from witness
There was a controversy over the prior recorded statements in the Kenyan case. The defendants claimed that witnesses had been coached by partisan individuals who were interested in defeating justice for the defendants. The recording of statements was stated in rule 68, and there was a feeling that its original form was ambiguous and was open to misinterpretation. The amendment was made that permitted the use of statements recoded prior to the court proceeding as long as the affidavit to that effect was effectively signed.
Trial in absentia exclusion from trial
The assembly adopted the request from the Kenyan diplomats that the president and his deputy should be exempted from the proceedings of their trial because of their positions in the country. Trial in absentia was something that was unique to the proceedings of the International Criminal Court. In the past cases, the defendants were expected to be present during the proceedings of their cases. However, this assembly made an amendment that would allow the proceedings to continue in the absentia of the defendants under special circumstances. The assembly described their positions as extraordinary duties that would make it necessary for them to be present in their countries.
As the president of Kenya, Mr. Kenyatta had the mandate to govern his country. This extraordinary duty was considered by the assembly as a reason that is good enough to exempt a defendant from attending the proceedings of his case. The rule 134 that demanded for the physical presence of the defendant during the proceedings was, therefore, amended to give people in position of leadership an opportunity to skip some of the court proceedings. The Kenyan deputy president was also exempted from the court proceedings under the same rule. This amendment also introduced video technology that was a new phenomenon at the ICC. This meant that the defendants can attend the proceeding through video conferencing. This would eliminate the need to be physically present during the court proceedings.
How the amendments address the particular challenges faced by the ICC in the Kenya situation
Some of the amendments have helped address the challenges faced by the ICC in the Kenyan situation. One of the main challenges that were solved by this assembly was the issue of statements written by the witnesses prior to the court proceedings. Some of the witnesses were compromised by high ranking government officials in Kenya. They were either coerced with threat of death or bribed after their identities were revealed.
This made them change their statements during the proceedings in favor of the defendants as a way of protecting themselves. Others withdrew from the case, and this led to the collapse of Francis Muthaura who was one of the ICC suspects. When the assembly passed that the previously recorded statements from the witnesses could be used in the courts, it became easy for the prosecutors to use the evidence of the witnesses even after they withdrew from the cases. This was vital in addressing the problem of witness victimization.
The amendments also criminalized any direct interference with witnesses of the ICC. Walter Baraza, a Kenyan journalist who was accused of revealing the identity of the witnesses and bribing them, became a suspect in the ICC for interfering with justice. The ICC has issued a warrant of arrest on him and requested the Kenyan authorities to arrest and send him to The Hague so that he can be prosecuted for that offence in the International Criminal Court. The amendments have made it possible for the president of Kenya and his deputy- who have been interdicted for crime against humanity- to attend only some of the proceedings, giving them an opportunity to run their countries without direct interferences by the cases.
How the amendments reflect or relate to experience from prior tribunals and cases
The amendments reflect on some of the experiences from the prior tribunals and cases. The Lubanga case would have been more successful if some of the amendments of the assembly were to be applied. Thomas Lubanga was accused of crime against humanity in the Democratic Republic of Congo. The entire proceedings took place at the International Criminal Court at The Hague. This limited the number of those who could attend the cases as witnesses because of the distance. Human rights groups have complained that the 14-year sentence given to Lubanga amounted to lack of justice given the atrocities he committed.
They have attributed this leniency to the fact that the jury was miles away from the place where the crimes were committed, and therefore, was not able to determine the real impact of Lubanga’s actions. They claimed that the case should have been heard from a location that is near Congo. Based on the amendments made by the assembly, the case would have been brought to neighboring countries to allow many witnesses to attend the proceedings. As stated in this new amendment, this would have allowed for public consultations and community participation in the proceedings.
How the amendments balance the interests of the prosecutor, defense, victims, and witnesses
When the assembly made the amendments, they were under pressure from the African Union and Kenyan diplomats to find a way that would make the Kenyan president manage his country without any direct interference from the court’s proceedings. It was also obliged to find solutions to the problems of the ICC that it was facing in the Kenyan case, especially after the case against Muthaura failed to pull through. It had to make a delicate balance to ensure that the interest of the prosecutor, defense, victims, and witnesses are well protected during the proceeding.
The amendment made by the assembly that allowed the court to use pre-recorded statements was very beneficial to the prosecutor. The International Criminal Court prosecutor faced serious problems following the withdrawal of many of the witnesses after their identity had been revealed. Some even changed their statements in favor of the defendants following the threats they received from the Kenyan government. This weakened the arguments of the prosecutor. The amendment allowed the prosecutor to use the previously recorded statements to push through their arguments.
To the defense team, the amendment was very beneficial in many ways. It introduced a new system where the defendants could attend the proceedings via video technology. This meant that the defendants would have time to govern their country as the proceedings went on. The absentia clause was also to the benefit of the defense team. The defendants were exempted from attending all the court proceedings against them, which was one of their main requests to the assembly.
To the witnesses, it was beneficial that the assembly permitted them to make testimonies without revealing their identities. Their faces and voices were distorted to eliminate any possibility of victimization by their own government or people at their home country. The Witness Protection Act also ensured that anyone who had known of the witness identity previously and revealed it to third parties would be held liable. This was the case with Walter Baraza who is now facing charges of witness interference. To the victims, the case seeks to find the best way of delivering justice to them.