CRIMINAL COURTS AND TRIBUNALS INTERNATIONAL CRIMINAL COURT integrity or political independence of Along with the ideas promulgated another State, or in any other manner at Nuremburg, the UN Charter, adopted FOURTH STATE PARTY TO THE ROME inconsistent with the Charter of the United in 1945, prohibited the use of armed STATUTE RATIFIES CRIME Nations.” Notably, this definition refers force against another state in Article 2(4). OF AGGRESSION AMENDMENT back to the UN Charter throughout the Although international law had customarily text, reflecting compromises made to limit protected the sovereignty of states, including Luxembourg recently became the fourth the scope of the definition. their right to use armed force against another, State Party of the International Criminal the UN Charter, along with Nuremburg, Court (ICC, Court) to ratify amendments The adopted amendments also include suggest an evolving intent to limit the to the Rome Statute that were adopted in Article 15 bis and 15 ter, the conditions for legitimate use of armed forces to situations a historic consensus at the 2010 Review the Court’s exercise of jurisdiction over the of self-defense, although international Conference of the International Criminal crime of aggression. According to Article humanitarian law has yet to place such Court in Kampala, Uganda. The January 15 bis, for the crime of aggression, the strict limits in all cases. The new amend- 15, 2013 ratification brings the contro- prosecutor could only open an investigation ments to the Rome Statue would take steps versial amendments another step closer to proprio motu or one based on a state toward reinforcing these limitations on the entering into force. If the requisite number referral of a situation, after ascertaining use of armed force and can be seen as an of states ratify the proposed amendments, whether the UN Security Council has made attempt to further the principles endorsed the ICC’s jurisdiction would dramatically a determination of an act of aggression by Nuremburg—the end to global conflicts increase in scope, likely having profound committed by the state concerned. If the that result in mass casualties and the ability global implications for current armed Security Council has made such a deter- to hold individuals accountable for their conflicts. mination, then the prosecutor may initiate actions in these atrocities. the investigation. If the Security Council Although the Rome Statute included has not made such a determination within the crime of aggression within the Court’s six months of the date of notification, ICC WITHDRAWS CHARGES AGAINST jurisdiction at its inception, the Court has then the prosecutor may commence the FORMER KENYAN OFFICIAL been unable to exercise its jurisdiction investigation only if the Pre-Trial Chamber as the original Statute failed to define The International Criminal Court’s has authorized it and the Security Council the crime or its jurisdictional boundaries. (ICC) Prosecutor, Fatou Bensouda, filed a has not decided against recognition of an The inclusion of the crime of aggression motion in March 2013 to drop all charges act of aggression. in Article 5, while lacking a functional against Francis Kirimi Muthaura, the former definition and jurisdictional details, was The idea of a crime of aggression, Head of the Public Service and Secretary part of a compromise reached during the while treated as a novel idea by many to the Cabinet of the Republic of Kenya, negotiation of the Rome Statute in 1998. States Parties to the Rome Statute, is not a co-accused of Kenya’s recently elected However, on June 11, 2010, the delegates at all a new concept within international President, Uhuru Kenyatta. Muthaura and of the Review Conference of the Rome law. Article 1 of the 1928 Kellogg-Briand Kenyatta were jointly accused of five Statute adopted amendments that included Pact, known as the General Treaty for counts of crimes against humanity for a definition of the crime of aggression the Renunciation of War, declared, “The their alleged involvement in authorizing and established conditions for the Court’s High Contracting Parties solemnly declare and organizing the wave of violence that jurisdiction. in the names of their respective peoples swept through Kenya following contested that they condemn recourse to war for presidential elections in late 2007. All The amendments adopted in Kampala the solution of international controversies, five counts are included in Article 7(1) include Article 8 which defines the crime and renounce it, as an instrument of of the Rome Statute of the ICC, which of aggression for the purpose of the Rome national policy in their relations with one defines crimes against humanity as certain Statute. The text of Article 8(1) states that another.” With the commencement of the acts “committed as part of a widespread the crime of aggression must be conducted Nuremburg Tribunal in 1950, an interna- or systematic attack directed against any by a person effectively controlling the tional court actually applied its jurisdiction civilian population, with knowledge of political or military action of a state and to the crime of aggression though it used the the attack.” Specifically, Muthaura and is “the planning, preparation, initiation term “crimes against peace.” The definition Kenyatta were charged with murder, or execution […] of an act of aggression of crimes against peace adopted in deportation or forcible transfer, rape, which, by its character, gravity and scale, the Nuremburg principles comprises persecution, and other inhumane acts constitutes a manifest violation of the “planning, preparation, initiation or waging resulting in the death of more than 1,000 Charter of the United Nations.” The term of a war of aggression or a war in violation civilians and the displacement of more “act of aggression” is defined in Article of international treaties, agreements or than 600,000 more. In Bensouda’s state- 8(2) bis as the “use of armed force by a assurances.” ment on the notice to withdraw charges State against the sovereignty, territorial against Muthaura, she stressed that it was 69 118568_AU_HRB.indd 69 7/17/13 9:05 AM her duty to do so when there is no longer returned to the Pre-Trial Chamber because article titled The STL Witness List: Why a reasonable prospect of conviction at trial. the prosecution’s case has changed drasti- We Published, justified the release of the cally in the past year as certain evidence names and photographs, saying that the In the wake of the worst unrest in no longer exists and a high percentage of public has a right to know the identities Kenya since its independence in 1963, new evidence and undisclosed witnesses of those testifying against the accused. Muthaura has been accused of authorizing have been offered. Lawyers representing Concerns about witness intimidation fur- police to use excessive force against pro- victims of the violence fear that if Kenyatta ther complicate public opinion regarding testers, protected members of the Party of does take power, there could be wide- the already-controversial trial, which will National Unity’s youth militia, and also spread retaliation for cooperating with try the four accused in abstentia. of attending meetings in which attacks the prosecution and serious danger for on civilians were planned. On March 31, In April 2013, the Pre-Trial Judge witnesses against him. 2010, the Pre-Trial Chamber II granted the determined that these leaks likely con- prosecution’s request to initiate an investi- The democratic election of an alleged stituted contempt of court and asked the gation into crimes of humanity committed criminal accused of grave human rights President of the tribunal to refer the matter by Muthaura and Kenyatta. Subsequently, abuses presents a seemingly monumental to a Contempt Judge. In accordance with the case was referred to Trial Chamber V problem for the International Criminal a March 2013 calendar assigning one on March 29, 2012. Under Article 61(9) Court, which has had a shaky history since Contempt Judge and one Appeals Panel of the Rome Statute, “after commence- its inception ten years ago. Many have for each month of the year, the President ment of the trial, the Prosecutor may, criticized the Court as being too African- of the STL, Judge David Baragwanath, with the permission of the Trial Chamber, focused, not effective enough, and an was designated as the Contempt Judge withdraw the charges” against the accused. enduring symbol of western colonialism in this matter. After the April 25, 2013, There is no further guidance within the —criticisms Kenyatta capitalized on in hearing on the contempt allegations, Judge Statute itself on what conditions must the election by using his indictment as Baragwanath issued a decision ordering be met for the withdrawal of charges or a way to gather popular support. The the appointment of an independent amicus how charges are withdrawn procedurally. decision of the Prosecutor to withdraw the curiae to investigate the source of the leaks On March 11, 2013, Bensouda issued charges against Muthaura due to lack of and those who published the confidential a statement on her notice to withdraw evidence could be seen as an example of information. Rule 60 bis allows the STL charges against Muthaura, in which she the inefficiencies of the Court. However it to hold individuals found in contempt of cited several reasons for the withdrawal, could also serve as an important reminder court, meaning those who “knowingly and including witnesses’ death or refusal to about the rule of law and the protections of willingly interfere with its administration testify due to fear, the lack of support from defendant’s rights that are essential to any of justice” or “those who threaten and the government of Kenya in providing fair justice system. intimidate witnesses,” responsible through critical evidence and facilitating access sentences up to seven years in prison and Tracy French, a J.D.