By
Stephen Oola

February, 2010

Introduction

The International Criminal Court (ICC) will hold its first review conference in Kampala, Uganda from May 30th -June 11, 2010. When the Rome statute that established the ICC was adopted in 1998, the provision was made to hold a review seven years after the court came into force. The Rome statute entered into effect on July 1st, 2002 when 60 states ratified the Statute. According to the convening letter dated August 7, 2009 by the United Nations Secretary General Ban Ki -moon, the conference will be convened in Kampala by the President of the Assembly of State Parties pursuant to Articles 123 paragraph 1 of the Rome Statute.[1] Christian Wenaweser--President of the Assembly of State Parties said the review conference will be the first opportunity for State Parties to consider and adopt amendments to the Statute.[2] Both Ban Ki-moon and Christian Wenaweser have described the review conference as 'a timely opportunity for states to take stock of what has been achieved and to reflect the court's future course.' The question here is whether the Kampala review will deliver an international court that is fair, effective and independent enough to promote global justice and sustainable peace for all.[3]

The Agenda for Discussion in Kampala

Top on the agenda for discussion in Kampala are issues to do with crimes of aggression; the transitional provisions under article 124 on deferral of court jurisdiction; Article 8 to expand the list of prohibited weapons; and other proposed amendments to the Statute.[4] Crimes of aggression had a working group that finished its report in late 2009. According to the 2008 update, the working group considered the "crime of aggression to be a leadership crime-committed by a person in a position to effectively exercise control over or to direct the political or military action of a state. It centers on the use of armed force by a state against another state, or in a manner inconsistent with the charter of the United Nations".[5] Whatever definition they will reach in Kampala, there will be controversy. Pundits are already expressing skepticism about whether any agreement will be reached at all.[6] The current compromises to charge the Security Council with powers to prosecute crimes of aggression seem to imply that permanent members with veto power remain unprosecutable. Also, what it is likely is that debates around this one crime may dominate the whole conference and other pressing operational concerns may be neglected.[7] This paper makes the argument that while the issues of aggression and deferrals are critical, they should not be exclusive. It is important to streamline some 'operational' concerns that marred the court's lifespan during its first decade. Some of these controversies were left unaddressed in Rome, but many controversies arose from the court's operation in the conflicts in Africa which triggered the peace vs. justice dilemma.[8]

In 2009, South Africa proposed to the Assembly of State Parties that the powers of the UN Security Council to defer an investigation in the interest of peace and justice also be given to the General Assembly.[9] Trinidad and Tobago also proposed that drug trafficking be included on the list of crimes prohibited under the Statute. There was also a suggestion that intentional targeting of journalists be included in the definition of war crimes.[10] It is unclear at this stage if all these proposals will be discussed in Kampala. What is apparent, however, is that there are many other important issues to Africans that will not rank as 'key,' even while the delegates meet in Kampala.[11] These issues, as I shall demonstrate in this paper, are equally imperative for the court's future effectiveness in the continent. In particular, because the court was only tested in Africa, it is in Africa where it must draw its lessons and map its strategy for the next decade.

Looking Back Twelve Years to Rome

The journey towards the Rome statute and the establishment of a permanent international criminal court was long and full of setbacks.[12] This was caused, in part, by the fact that it was necessary that the ICC be an independent international organization if it was to be able to effectively promote international justice. It was to be separate from the United Nations, and their relationship would be based on a separate agreement. The need for such a strong global justice system was evident long before the Nuremberg trials in Germany and post World War II.[13] The urgency, however, was echoed following the experiences in Rwanda and the former Yugoslavia, which demonstrated the inability and of ad-hoc international criminal tribunals in preventing the commission of genocide, war crimes and crimes against humanity in the first place.[14] On June 15, 1998 the Rome Statute establishing the ICC was adopted. Some 120 states voted in favor, seven states voted against it, and about 21 states were absent. Most notably, the United States and Israel were joined by five others which voted against the Statute.[15] In July 1st 2002, after four years, the court came into effect with the 60 ratifying states requirement.

Jurisdiction of the ICC

Under the Rome Statute, the ICC jurisdiction is restricted to the most serious crimes of concern to the international community as a whole:[16] genocide; crimes against humanity; war crimes; and crimes of aggression.[17] In its preamble, the Statute requires states and the international community to cooperate to put an end to impunity in an effort to prevent such crimes. Specifically, it reaffirms states' obligations to exercise criminal jurisdiction over those responsible. However, jurisdiction of the ICC is not limited to nationals of that State Party in which a perpetrator commits a crime, but is equally extended to offenses committed within a State Party by foreign nationals.[18] It also prohibits states from threatening force, or actually using force against the territorial integrity or political independence of any state.

The court is established to complement national criminal jurisdiction. Its jurisdiction begins were the State Party in which the crime occurs, or whose nationals' commit such crime, is either unable or unwilling to prosecute such crimes. As a result, the court is not vested with universal criminal jurisdiction.[19] This also means that the court's jurisdiction is not automatic. There are three different ways that the court's jurisdiction can be triggered: 1) a State Party may refer a situation within the court's jurisdiction to the court 2) the Security Council may refer a situation to the court; and 3) the court's Prosecutor can, on his own, initiate investigations after approval by the Pre-Trial Chamber.[20] In other words, except in situations of referrals by the Security Council, a state should have ratified the Rome Statute to have its citizens bound by the court, or the acts subject to an indictment must have been committed within the territory of a State Party. The court is hosted at The Hague in the Netherlands, but may sit elsewhere, whenever it considers desirable under the Statute.[21]

Likewise, the court has no retrogressive powers; the court only has jurisdiction over crimes committed after July 1st 2002. Those states joining later can make special declarations accepting the court's jurisdiction from 1st July 2002 when the court came into operation.[22] The court came as a big relief to all people who believed that for once, no one will be above the law: that those who wielded and abused their entrusted powers will now be held accountable. Unfortunately, the story has been a little different than that in the courts' first decade of operation. Opinions are at best divided on whether or not the court is on course to uphold or dispense global justice.

From Rome to Kampala: Change of Venue or Changing Course?

The decision to hold the review conference in Kampala was made pursuant to a resolution adopted by the Assembly of Head of State Parties in November 2008, during its seventh plenary meeting.[23] Uganda did not have much of a challenge to win the bid to host the review conference, if any. At the time of the venue selection, Uganda appeared to be on course to enact a law recognizing ICC jurisdiction and its cooperation with courts within Uganda. The Ugandan version of the law has now finally been passed by the Parliament of Uganda and awaits the President's signature to become law.[24] The passage of this Bill, while a welcome development, is being viewed with a lot of skepticism, because it lacks the support of a significant segment of Ugandans, including some within the judiciary. Many people believe that the desire to comply with conditions to host the review conference might have driven the passage of this Bill, without any political will to implement or embark on the much-needed comprehensive transitional justice and national reconciliation process for the whole country.

Therefore, as State Parties converge in Uganda this May 2010, everybody will look back in retrospect on how Kampala became Rome II. Although Kampala had hosted the Common Wealth head of governments meeting very successfully, many people are curious whether by hosting the ICC, Uganda will change the course of global justice. Can a city not hitherto known for 'justice as understood in many parts of the West' embrace a more universalistic notion of justice? Some African leaders, for example, would wonder whether after Kampala, the ICC shall be in position to hold every leader accountable, or whether it will be business as usual: where powerful leaders can hold the ICC to account for others. Can a world court without universal jurisdiction effectively hold accountable the powerful individuals who orchestrate mass killings beyond their borders using unmanned drones? These and many more questions will dominate Africa's concerns during the review conference.

The voices of victims in prosecutorial decisions must be given a political platform as well. Experiences over the last decade have demonstrated that the legal platform alone is incapable of responding to the immediate pragmatic needs of victims. Having followed the debates that dominated the court's first decade in operation: debates over its involvement and non- involvement in situations like Darfur or Iraq, these questions are no longer theoretical. Some questions regarding the role of the Security Council and the prosecutors' discretion were raised during pre-negotiations in Rome a decade ago. As the State Parties meet in Kampala, they must not trade justice needs for diplomatic convenience. Experience over the last decade reveals how crucial these issues were. Though they were swept under the rug in Rome, they continued to impede the court's operation time and again. Such issues include the lack of universal jurisdiction, the role of the Security Council, the court Prosecutors' independence and impartiality, the threat of veto power, as well as, sequencing or when a state is deemed unable or unwilling to prosecute alleged crimes.[25]

In Rome, Africa's proposal that restorative justice and truth and reconciliation mechanisms be recognized as legitimate complements to the ICC in the exercise of its prosecutorial discretion was ignored, despite the well-known South African experience.[26] The negotiators were driven by the ideology that justice is punishment, rather than embracing a holistic notion of justice to include restorative approaches. According to Robinson, many of the participants felt very strongly that prosecution is the sole appropriate (and indeed obligatory response) to mass violence.[27] As it turned out in practice, prosecutions, while important, cannot simply stand alone. The interest of justice sometimes requires that prosecution follows peacebuilding, truth telling, and comprehensive reparation programs.

Africa and the ICC: A Decade of Love, Hate and Drama

The African experience with the ICC over the last 10 years is paradoxical at best. It discloses special love, hate and drama. This illogicality to me is testament to the importance of this court to the continent's and global justice pursuit. Being the global underdog, Africa cannot dismiss or retreat from the need for an effective ICC, perhaps more than any other continent. Of all continents, Africa had the largest number of countries that ratified the Rome statute. This largely accounts for the court's coming into operation just four years after the Rome statute was adopted.[28] Africans embraced the court even despite their insignificant influence in establishing it. Also, not only were the African countries the first to ratify the Rome Statute, but they were also the first to "voluntarily" refer their situations to the ICC.

Up until now, the ICC has been involved in five situations, all in Africa. It has issued four indictments: in Uganda, Democratic Republic of Congo (DRC), the Central African Republic, and Sudan. The most significant one is the indictment of Bashir, the President of Sudan.[29] These cases captured headlines globally and made the ICC a household name, for example the court has taken on Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ogwen (2005 from Uganda).[30] From the DRC they have prosecuted Thomas Lubanga Dyilo (2006),[31] indicted John Bosco Ntaganda (2006),[32] and Germaine Katanga and Mathew Ngudjojo Chui (2007).[33] In addition to Omar Hassan Al Bashir (2008),[34] indictments from Sudan include: Ahmad M. Harun and Ali Kushayb (2007),[35] Bahar Idriss Abu Garda (2009).[36] And finally, from the court has also arrested former Congolese warlord Jean Pierre Bemba (2008) for crimes committed in Central African Republic.[37] Four more indictments appear on course from the Kenyan situation.[38] Generally speaking therefore, Africa made the ICC worth its name, but not without a cost or regrets. For that reason, the ICC must pay particular attention to what Africans find problematic as well.

The court's cases in Africa were not devoid of controversies. Sometimes the apparent focus on Africa proved so much that it sparked intermittent hatred. Some Africans had the impression that the continent had become a guinea pig for international justice. The court's inability to arraign suspected war criminals elsewhere raised questions about its legitimacy. Many commentators felt that the global justice was being applied selectively, if not being selectively imposed on Africans. On many occasions, Africans felt they were ignored. It was like some voices, somewhere, mattered more to the ICC than did justice. The call for alternative justice mechanism was seen by the court's prosecutor Moreno Ocampo as simply condoning impunity. Was this then associating a whole continental tradition with impunity? While these customs are not infallible, and the demands for traditional justice or truth and reconciliation commissions are not supported by all Africans, it signaled some problem with the current approach to international justice. Even some avowed ICC supporters were dismayed by the manner and timing of certain indictments in particular cases.[39]

In some states in Africa, the ICC was being invited in with open hands, while in other states it was being scoffed at in a very dramatic fashion. Further, in some states, the ICC was invited to serve specific tasks and any transgression from those tasks attracted furious reactions. On many occasions, even human rights activists disagreed with the ICC, siding with their governments, because they questioned the judgment of the Prosecutor or even his motive. Though most Africans were not opposed to prosecutions of war crimes per se, many questioned the manner in which, the indictments were being issued and the potential biases.[40] In conflict situations, people feared escalation of violence and sympathized with the victims, whose miseries continued unabated. Also, it was clear that without US backing, the ICC was a toothless dog. The US sought to undermine the ICC at a time when its forces were torturing in Iraq and engaging in extraordinary renditions around the globe. In Eastern Europe, Russian forces invaded Georgia in broad daylight as the ICC quietly stood by. These events worried African leaders and people: at the same time the court was sent against Bashir for war crimes while Bush, Blair and Vladimir Putin watched in safety. This sparked real drama when African leaders meeting under the auspices of the African Union unanimously declared that they would suspend all further cooperation with the ICC. This came shortly after the indictment of their Sudanese colleague, Omar Al Bashir, over the situation in Darfur.

This reaction took many people by surprise, given the long cordial relationship that the African leaders had had with the court.[41] With all the "voluntary" referrals and quick ratification, this apparently hasty reaction by the African leaders stunned some observers.[42] The truth, however, can only be explained by the diplomatic rows that followed.[43] Few, if any, of the African leaders doubted that mass killings were taking place in Darfur. They all conceded that the perpetrators must be held accountable. What they did not contemplate at all was that now there was the real prospect of an indictment and arrest of a sitting President. In Uganda, just as in most African nations, the Presidential "chair is sweet" and so some African leaders wish to die in power. The Bashir indictment therefore threatened all African and less democratic leaders. Some observers predicted the end of the road for Africa's cooperation with the ICC.[44] It did not take long before that prediction was fulfilled. One year later, all the African leaders, including some who had invited the ICC to act against their own political opponents, declared their non-cooperation with the ICC in an AU resolution.

This drama was important in many ways. First, it made the ICC chief prosecutor Moreno Ocampo realize where the problem of impunity actually lies in Africa. As long as the court was running after rebel leaders and opposition politicians, there was no problem. The moment it punched a hole in the heart of leadership impunity, states rose up in arms. For once, the court was performing its mandate--punish crimes of concern to the international community as a whole, and ones that states will not punish.[45] This paradigm shift was the reason behind the overwhelming support by civil society for the indictments to be issued against Kenyan President Mwai Kibaki and Prime Minister Raila Odinga. Secondly, the hypocrisy of many African leaders was exposed. These same leaders were very cooperative and did not denounce the ICC when it refused to suspend its indictments for the sake of the Juba peace process and the conflict in northern Uganda. Why? Because, the indictments against rebel leaders like Joseph Kony enables leaders like Museveni to retain power. However, when a comrade Bashir became a target, no one appeared to be safe, and there was no room for neutrality.[46] It was here that the court had found its niche. In fact, as I argued before, this was the reason the court was established: these powerful 'elite' cliques must be the focus of a world court, rather than the ICC running after small fish like Bemba or Thomas Lubanga.

Why do I say this? Because it is partly bad governance and repression which has made violent conflicts endemic in Africa. Those who hold power care little about justice, only about power consolidation. The victims, on the other hand, are those who are sacrificed in the name of justice. They are easily declared terrorists and descended upon by the international community. International justice, therefore, must target those who wield power within the state apparatus. People in Africa and especially, those of us in civil society, had constantly warned the court that ignoring states abuses to win their cooperation only condones impunity. And for this reason, the court had the full support of the civil society as evident in their unanimous opposition to the AU resolution.[47] But it is not just African leaders, globally those who hold and misuse their powers must be held accountable.[48] The ICC Watch, a leading international organization monitoring the ICC implementation issued a staunch protest in a press release "Why won't the ICC move against Tony Blair on War Crimes? May 4th 2010.[49] This outrage came in the wake of the defiant response by former British Prime Minister Tony Blair in his testimony on whether he manipulated intelligence evidence to topple Iraqi President Saddam Hussein. The Kampala conference must therefore send clear signals to all leaders, irrespective of their country, that impunity shall be punished by eliminating provisions in the Rome Statute that vests certain states under the Security Council with veto powers to block prosecution of their own citizens.[50]

Going Forward

Many people in Africa are wondering whether the shift from Rome to Kampala will constitute a fundamental change or a mere change of venue. Therefore, the forthcoming Kampala review conference is a make-or-break situation as there is so much at stake. A failure in Kampala would undermine the legitimacy of the court and frustrate many people yearning for real justice and a sustainable peace in Africa. Also, while Africans delight in hosting the event in Kampala, many are also aware of the additional challenge facing the continent that the ICC has so far not tackled. The crime of election-rigging and associated violence is the new pandemic plaguing Africans. Election violence of the past has triggered mass killings of genocidal proportion in Uganda, Kenya and Ivory Coast.[51] It is imperative, therefore, that as the State Parties assemble in Kampala, they recognize that election impunity is of grave concern to Africa and to the international community as a whole.[52] As leaders discuss amendments to the Rome statute, massive election rigging and associated violence must be included in the definition of crimes against humanity.[53] The evidence today suggests, overwhelmingly, that massive election rigging has already taken thousands of human lives. If this cycle is not broken, and sanctions are not imposed then, in the future, those who want to massacre need simply organize an election. The shocking pattern of election rigging around the world now calls for international sanctions and enforcement by the ICC. There are very important elections soon coming up in Sudan, Uganda and throughout the region. These elections are crucial to their people's aspirations, yet evidence suggests that they will be massively rigged and will result in unprecedented violence.[54]

Finally, because election rigging can have widespread negative effects, one could argue, for example, that when George Bush was declared President of the US in 2008 by the US Supreme Court, despite serious questions concerning the Florida vote, children died in Iraq as a result. When Mwai Kibaki massively rigged elections in Kenya in 2007, mass killings followed. In Zimbabwe, Mugabe rigged elections, and inflation sky rocketed afterwards, with violence that costs millions of innocent lives. In Iran, Ahmadinejad rigged an election and brutalized protesters to buy more time to pursue his weapon of mass destruction programs. Let Kampala bring the change we can believe in.

[1] See Ban Ki-moon, UN Secretary General, "Letter of Invitation" dated August 7, 2009 available here, accessed January 29th, 2010.

[2] See Christian Wenaweser, President of the Assembly of State Parties to the ICC - "Letter of Invitation" to head of governments dated September 15th, 2009 available here, accessed January 30, 2010.

[3] See Coalition for the ICC, "Review Conference and the Rome Statute; Delivering on the Promise of a Fair, Effective and Independent Court," CICC at http://www.iccnow.org/?mod=review, accessed February 13, 2010.

[4] See Amnesty International, "ICC Initial Recommendations on the Review Conference," AI November 2009 at http://www.iccnow.org/cic_documents/ASP8-REVIEW-CONFERENCE-20091117.pdf, accessed February 13, 2010.

[5] See CICC Factsheet, "The ICC and the Crimes of Aggression: Resumed Sixth Session," May 2008 available here, accessed February 13, 2010.

[6] See Glennon J. Michael, "The Blank-Prose Crimes of Aggression," The Yale Journal of International Law. Vol. 35/ 71 (2010): 72-112.

[7] For a discussion on some of these issues see Ambassador Mirjamba Blaak, "The ICC that Africa Wants," Presentation at a Symposium by the Deputy Head of Mission, Embassy of Uganda in Brussels, available here, accessed on January 31st, 2010.

[8] See Stephen Oola, "Conflicting Justice Systems and the Search for Peace, Justice and Reconciliation in Northern Uganda," Conference Presentation published by the Center for Human Rights and Social Justice, Southern Cross University, Australia available at http://epubs.scu.edu.au/cgi/viewcontent.cgi?article=1000&context=cpsj-pubs#page=67< /a>, accessed February 9, 2010.

[9] See Christopher Gevers, "South Africa Bold Proposal Shows up the Flaws in the Rome Compromise," Business Day, December (2009). Also available at http://www.businessday.c o.za/articles/Content.aspx?id=90453, accessed January 30, 2010.

[10] See Wikipedia-the free encyclopedia, "Review Conference of the International Criminal Court" available here, accessed January 30, 2010.

[11] See Ambassador Mirjamba Blaak, "The ICC that Africa Wants," Presentation at a Symposium ibid.

[12] See Erick K. Leonard's, "Establishing the International Criminal Court: The Emergence of a New Global Authority?" Case No. 258 Pew Case Studies in International Affairs (2000). available at http://www.usc.edu/dept/LAS/ir/calis /pdf/0197.pdf, accessed 29th, 2010.

[13] The call for individual responsibility for international crimes and crimes against humanity is documented as early as the 1915s Armenian genocide. The holocaust and the mass killings, or the destructions of the 1940s wars, tend to obscure prior tragedies of similar scale committed across territories with impunity. In fact one can argue that, worse human rights violations occurred even in early times, in form of ethnic cleansing, occupation, slavery, colonization, domination, racism and exploitations.

[14] See Law Jrank.Org, "International Criminal Court: A Historical Background," available here, accessed January, 2010.

[15] See Alton Frye, "Towards an International Criminal Court? Three Options," A Council Policy Initiative -Council of Foreign Relations (1999):3 available here, accessed on January 30, 2010.

[16] See Preamble, Article 1 and 5 of the Rome Statute of the International Criminal Court, 1998.

[17] See Article 5 Rome Statute ibid.

[18] See Article 12 of the Rome Statute.

[19] The purpose of this jurisdictional duality was needed to win states approval but also tackle the mischief. The need for a permanent international criminal court was to guarantee justice to the powerless. Throughout the world, those who commit human rights violations and goes scot free-without the risk of being punished are state agents or machineries, which have full state backing. The Rome Statue was thus to leave punishment of such state agents to the states but in case they were not punished the ICC would step in. It is an overstretched therefore for the court to go chasing after non-state actors that will definitely be punished by the state as soon as possible, especially when the ICC will depend on the state to get hold of them.

[20] See Article 13, 14, 15, 16 and 17 of the Rome Statute.

[21] See Article 3 and also Article 4 on its legal status and powers on the territory of any state party or by special agreement on the territory of any other state.

[22] See Article 11 of the Rome Statue.

[23] See ICC-ASP Resolution ICC-ASP/7/Res.2 on November 7th, 2008 at h ttp://www.icc-cpi.int/iccdocs/asp-docs/Resolutions/ICC-ASP-ASP7-Res-02-ENG.pdf, accessed January 30th, 2010.

[24] See Milton Opolot, "I Am Ready to Face Trial - Museveni" Sunday Vision 14th March 2010 available here.

[25] See Philippe Kirsch and John T. Holmes, "The Rome Conference on the International Criminal Court Process," The American Journal of International Law, Vol. 93, No. 1 (Jan., 1999) 1-12. Also available online at http://www.jstor.org/stable/pdfplus/299 7952.pdf, accessed January 29, 2010.

[26] See Darryle Robinson, "Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court," European Journal of International Law, Vol. 14 No. 3, (2003) 481-505. Also available online at http://ejil.oxfordjournals.org/cgi/reprint /14/3/481, accessed January 29, 2010.

[27] Ibid.

[28] This was six years earlier than predicted. At Rome, many people predicted that it would take about 10 years before the statute could get the required 60 votes to set the court in force. But with some 33 ratification by African states, the court came into force as early as 1st July 2002. See The Rome Statute available here, accessed on Jan 30, 2010.

[29] For Cases and Situations before the ICC see ICC website at http://www.icc-cpi.int/Menus/I CC/Situations+and+Cases/, accessed January 30, 2010.

[30] ICC Case No. 02/04 -01/05. Five top LRA leaders were initially indicted but Raska Lukwiyas name was removed having been confirmed dead. Two of the current indictee Vincent Otti and Okot Odhiambo are suspected dead but unconfirmed. Dominic Ogwen became the youngest war criminal to have been indicted by an international court. It is alleged he was abducted as a minor but graduated to become one of the most prolific killer. See the resource available here, accessed January 30, 2010.

[31] ICC Case No. 01/04 -01/06. Mr. Lubanga Dyilo is charged as a perpetrator or co-perpetrator of war crimes consisting of enlisting and conscripting children under the age of 15 into rebellion. See the resource available here, accessed on January 30, 2010.

[32] ICC Case No. 01/04 -02/06. Mr. Ntaganda is alleged Deputy Chief of the General Staff of the forces of the FPLC. See the resource available here, accessed January 30, 2010.

[33] ICC Case No. 01/04 -01/07. Alleged commander of the forces of FRPI in Ituri region of DRC, see the resource available here, accessed January 30, 2010.

[34] ICC Case No. 02/05 - 01/09 available here, accessed January 30, 2010.

[35] ICC Case No. ICC Case No. 02/05 - 01/07 available here, accessed January 30, 2010.

[36] ICC Case No. 02/05 -02/09 available here, accessed January 30, 2010.

[37] ICC Case No. 01/05 - 01/08 available h e re, accessed January 30, 2010.

[38] The Prosecutor has sought permission from the pre-trial chamber to launch investigation into the Kenyan situation following the post election violence in 2007. See http://www.icc-cpi.int/iccdocs/doc/do c778243.pdf, accessed on January 30, 2010.

[39] Some people where very concerned because of the court prosecutors' initial diplomatic relations with not very innocent states and issued selective indictments which raised questions as to whether; it was aiding autocratic African leaders to fight their own battles. Did the court help to promote peace processes or did it fuel more conflicts? These were the kind of questions asked repeatedly in situations like northern Uganda and Darfur and the responses sometimes resembled a drama.

[40] See Prof. Hans Kochler, "Global Justice or Global Revenge? The ICC and the Politicization of International Criminal Justice," Lecture delivered at the World Conference for International Justice, Khartoum, Sudan, 6th April 2009 at http://www.i-p-o.org/IP O-Koechler-ICC-politicization-2009.htm.

[41] See Stephanie Hanson, "Africa and the International Criminal Court," Council on Foreign Relations, Analysis Brief February 16, 2006 accessible at http://www.cfr.org/publication/12048/#p4 , accessed on January 30, 2010.

[42] See AU Press Release, "Decision on the Meeting of African States Parties to the International Criminal Court," dated July 14, 2009 available here, accessed January 31st, 2010.

[43] See Editorial, "Sudanese President Cancels Uganda Visit Over Arrest Threat," Sudan's Tribune, Friday July 17, 2009 at http://www.sudantribune.com/spip. php?article31835, accessed January 31,2010. Also see Sudan's Bashir absent from Uganda Summit at http://www.sudantribune.com/spip. php?article31948.

[44] See Stephen Oola, "Bashir and the ICC: The Aura or Audition of International Justice in Africa?" Oxford Transitional Justice Research, Working Paper Series, 2008 available at http://www.csls.ox.ac.uk/cic_docu ments/OolaFin.pdf, accessed January 31st 2010.

[45] Such crimes are committed by state functionaries if not they will be punished by the state, which means the ICC should focus on the power that be.

[46] See BBC Report, "African Union in Rift with Court," BBC NEWS/AFRICA July 3rd, 2009 at http://news.bbc.co.uk/2/hi/8133925.stm, accessed January 31st, 2010.

[47] See Sakhile Modise, "South Africa: Juma Under Fire for Supporting AU Stance on Omar Bashir," Afrik.Com Friday 17, July 2009 at http://en.afrik.com/article15934.html, accessed January 31, 2010.

[48] Reports of increasing European and Western control on the ICC are frustrating although arguably the court cannot function effectively with the financial support. This does do mean justice should be bought.

We can still fund the court to function effectively by holding us accountable. See ICC Watch Press Release, "Latest Report Reveals that Court is Under European and Western Control." Press Release 23 June 2009 at http://www.iccwatch.o rg/pdf/Press%20Release%2023June09.pdf, accessed February 4, 2010.

[49] See ICC Watch Press Release, "Why Won't the ICC Move Against Tony Blair on War Crimes," Press Release, February 4th 2010 at http://www.iccwatch.or g/pdf/Press%20Release%2004Feb10.pdf, accessed February 4, 2010.

[50] See Johansen, Robert C., "The Impact of US Policy Towards the International Criminal Court on the Prevention of Genocide, War Crimes, and Crimes Against Humanity." Human Rights Quarterly 28, No. 2 (2006): 301.

[51] See Bob Robert Katende, "Rights Group Indicts Government for Election Violence and Impunity," The Independent Tuesday 12, January 2010 available here, accessed January 31, 2010.

[52] See Michael Paul, "Are Uganda's 2011 Election the Next Big Threat to Peace?" Resolve Uganda http://www.resolveuganda.org/node/940, accessed January 31st, 2010.

[53] Election-rigging with violence stifles democracy and breeds more violence. When citizens' legitimate discontent is met by brutal repressive force, like in Uganda, a platform is built for future tragedy.

[54] See Arman Muhammad Ahmad, "Fraud in Sudan's Election," Sudan Tribune Sunday 31st January, 2010 at http://www.sudantribune.com/spip. php?article33965, accessed January 31, 2010.