31 May 2010

Kampala Diary 31/5/10

I arrived in Kampala last night on the flight from Amsterdam. It was full of conference delegates, and a lot of schmoozing went on during the trip. Many of the Americans on the flight were exhausted, as they had flown overnight. I left Dublin early in the morning, on a 6 AM flight. So I only had to wake up at 430. Ugh!

Upon arrival at Entebbe Airport, we were taken to the conference site, which is a huge hotel complex on the shores of Lake Victoria about 10 km or so from the centre of Kampala. With a great 50m pool!

We arrived too late for a couple of events that took place yesterday, and about which I only have second hand knowledge. There was a football game in support of victims. Among the players: UN Secretary-General Ban Ki-Moon, President Museveni of Uganda, Prosecutor Luis Moreno-Ocampo and Professor David Crane, who is former prosecutor of the Special Court for Sierra Leone.
In the evening, there was a dinner which featured Ben Ferencz, the legendary prosecutor at the Nuremberg Einsatzgruppen trial. I’m told he was at his most eloquent and persuasive about fully including the crime of aggression within the Rome Statute. Secretary-General Ban Ki-Moon gave a charming talk in which he reminisced about his youth. Apparently, he indicated his support for including the crime of aggression.

The Conference itself began this morning at 10 AM. It is a small room, as you can see from the photo, and not everyone could fit. Many had to watch the proceedings on video, and there were annoying problems with the sound feed disappearing from time to time. The morning session featured speeches by the various dignitaries, including Ban Ki-Moon, Ugandan President Museveni, ICC President Sang-hyun Song, Prosecutor Moreno-Ocampo, and former Secretary-General Kofi Annan. President Song announced that tomorrow he will sign three agreements with States on the enforcement of sentences.

Ban Ki-Moon spoke about the selectivity of the Court, and the charge that it is overly focused on Africa. Others, including Kofi Annan, picked up the same theme. But the speakers sounded on the defensive, as if they are not even themselves convinced that they have an adequate answer. The speeches reminded me of the famous line from Shakespeare’s Hamlet: ‘The lady doth protest too much, methinks.’

It is true, of course, that three of the five situations before the Court (Uganda, Democratic Republic of the Congo, Central African Republic) are the result of ‘self-referrals’, and the fourth situation, Kenya, might also have had the same fate had the Prosecutor not decided to exercise his proprio motu authority under article 15. Still, everybody would like to see the Court being fully operational elsewhere in the world, where there are also serious problems deserving its attention.

President Museveni livened things up a bit when he seemed to throw away his prepared text in favour of a rather rambling discourse. He said he had been fighting impunity for the past 45 years, and then insisted upon the distinction between just and unjust wars. It was his own folksy way, it seems, of supporting the inclusion of aggression. He finished with a reference, in French, to ‘immunité provisoire’. Nobody seems to know exactly what he was talking about.

The afternoon session consisted of speeches by delegations about their positions. It isn’t over – I’m still listening to the talks in the conference hall as I write this entry, and prepare to post it. Right now, the South African Ambassador is speaking. He has referred to the loss of South African lives in the first world war, and clearly favours including the crime of aggression.

Several delegations have supported fully including the crime of aggression in the Statute. I have yet to hear anyone oppose it. And yet, the opponents are out there, surely. They seem to be lurking below the radar. Perhaps nobody wants to be the first one to come out and say what I am sure that many think.

The Netherlands said the Rome Conference was an ‘historic opportunity’ and that ‘no stone should be left unturned’ in order to find a solution. With ‘necessary political will and courage’ we can succeed. The representative of Kenya referred to the debate in the Assembly of States Parties session in March, and said ‘an overwhelming number of states’ were willing to adopt provisions based upon combinations 3 or 4, which basically exclude the role of the Security Council. I heard those words (‘an overwhelming number of states’) a lot at the Rome Conference, and if this were all it takes, some of the more obnoxious provisions in the Statute would not be there.

Chatting with knowledgeable insiders in the corridors, on the plane and at the airport, I will add a few impressions (but without naming sources). It seems that there is a minimum position emerging, by which it could be acceptable to adopt a definition of aggression. Other issues would also be resolved, but with the exception of the big issue – indeed it is the only real issue – of how the jurisdiction is triggered. That would mean, of course, that the Court would still not be able to exercise jurisdiction over the crime. But its advocates say this would be ‘progress’, and that it would mean certain aspects of the issue would be resolved even if the entire problem remained unsolved.

I will call this the ‘Zeno’s paradox solution’. According to the paradox, it is impossible to cross a room, because first one must cross half the room, and than half of the remaining half, and then half of the remaining quarter, and so on. There always remains a bit more ground to be covered. Far from representing progress, my impression is that the Zeno’s paradox solution is a way to put a brave face on a defeat.

But it is early days yet, and the debate will continue to evolve in the days to come. We are in a formal part of the Conference. The real negotiating is yet to come. I have it on good authority that everything will not be wrapped up until the final session, eleven days hence.

There are many academics attending, and some students too. We currently have three doctoral candidates from the Irish Centre for Human Rights attending the conference, Nicolaos Strapatsas (who will defend his thesis later this year on the crime of aggression), Fannie Lafontaine (who is also a professor at Laval University, in Quebec City), and Rosette Muzigo-Morrison (of the International Criminal Tribunal for Rwanda). Meg de Guzman, a professor at Temple University in Philadelphia who is writing a thesis on gravity, arrives tomorrow. That makes four, and I am sure it is the largest delegation of doctoral students from any university.

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