As I write this article, States that have joined the Rome Statute, the foundational treaty of the International Criminal Court (ICC), are holding their annual session in The Hague, The Netherlands. This is no routine affair: Parties find themselves discussing the political implications of the work of the Court. In the past few months, the cases at the ICC have reverberated among the international community more than ever, especially those against Kenya's President and Deputy President, concerning crimes allegedly committed during violence that followed the country's 2007 presidential election.
Less than two months ago, the African Union held an extraordinary summit to discuss the work of the ICC in the African continent and instructed its members to follow a number of measures in response to their concerns. Among others, the African Union deployed a Contact Group to New York to advocate for the deferral by the United Nations Security Council of the Kenyan cases, a possibility foreseen in the Rome Statute. The UN Security Council did not agree to defer these cases. On November 16th, the Council expressed itself by a vote of seven in favor of deferral and eight of its members abstaining.
Now, it is for States Parties to the Rome Statute to have a discussion about the current state of affairs within the Rome Statute system. The annual session of the Assembly is offering numerous opportunities to do so.
We heard interventions by distinguished Africans like Ms. Navi Pillay and Mr. Abdou Diouf holding important international positions. These speakers put the work of the Court in a broader international context. Navi Pillay, the United Nations Human Rights Commissioner and former ICC and ICTR (International Criminal Tribunal for Rwanda) judge, was an anti-apartheid activist and the first non-white female judge of the High Court of South Africa. Abdou Diouf, the President of the Organisation Internationale de la Francophonie, was President of Senegal when Senegal became the first country to ratify the Rome Statute.
We also held a political debate with considerable high-level participation during which States had been encouraged to inform of their efforts to create domestic capacities to investigate and prosecute Rome Statute crimes in national courts. The lack of domestic capacity constitutes a major weakness of the system in which the ICC stands as the court of last resort. The Assembly also included in its agenda a special topic as requested by the African Union during its most recent summit concerning the consequences on peace, stability and reconciliation of indictments of sitting Heads of State and Government. That special segment was moderated by the first (2002-2005) President of the Assembly of States Parties H.R.H. Prince Zeid Ra'ad Hussain of Jordan and brought together persons familiar with the negotiating history of the Statute as well as actors like the Legal Counsel of the African Union, who informed the Assembly of the current concerns of some African States Parties.
The marathon five-hour session was candid and lively. While many speakers highlighted the need to use flexibilities built into the Rome Statute it was also made clear by numerous interventions that Article 27 of the Rome Statute, which provides for no immunity for anyone on the basis of his or her official capacity was, as one speaker said, "not an editorial mistake, but the bedrock of the ICC."
It is safe to say that we are currently facing the biggest stress test that the Court and States Parties as custodians of the legal framework have ever been subjected to since the inception of the Statute. Time will show how States will deal with this situation and what will be their response. Time will show if States will agree to modify the legal framework within which the Court works. One thing is clear: The level of engagement by all participants is an encouraging sign. The Court has moved into the second decade and its workload is not likely to diminish: just a couple of days ago four individuals were arrested in connection with the case against Jean-Pierre Bemba, which involves numerous charges of sexual violence in the Central African Republic.
As we shape our decisions we should bear in mind the interests of the ultimate beneficiaries of the Rome Statute system -- the victims and affected communities who have been subjected to atrocity crimes.