By Our Legal Affairs Correspondent
On July 17th 1998 at the Rome Diplomatic Conference (United Nations Diplomatic Conference of Plenipotentiaries on the establishment of the International Criminal Court) the International Community composed of 148 states from all geographical regions of the world ( I belief that the Gambia was not represented at this Rome conference) adopted the Statute of the International Criminal Court (ICC). This is why it is sometimes called the Rome Statute. It is not a Charter, it is a Statute. All the major legal systems (common law, civil, Islamic and mixed) of the world were represented and the Statute reflects a delicate balance between these different legal systems.
This historic event marked the realization of what was considered as a dream, the establishment of a permanent international criminal court (as opposed to the ad hoc systems set by the UN to deal with the human right violated committed in the Balkans and in Rwanda) with jurisdiction to bring to justice individuals who commit heinous crimes under international law in accordance with internationally accepted definitions of these crimes and judicial standards.
The Rome Statute is a challenge to impunity, enjoyed for a very long time by perpetrators of international crimes (such as terrorism, genocide, war crimes and crimes against humanity) hiding under the cloak of state sovereignty. Through an internationally agreed instrument to bring to justice the perpetrators of these grave crimes, the international community sent a strong message to the whole world that henceforth, no criminal irrespective of their official position (head of state or government or military commander etc.) will escape the arms of international justice thereby serving as a deterrent for the future commission of these crimes. This preventive role of the ICC is essential for promoting respect for international humanitarian law and human rights, thereby contributing to freedom, security, justice and the rule of law throughout the world.
Of the 148 states who participated at the Rome Conference, 120 voted in favor of the adoption of the ICC statute. However 20 states abstained from voting and seven voted against it including the United States, Israel, China, India and Russia. This strong support for the adoption of the ICC statute indicate the determination of the majority of states to put an end to impunity for international crimes learning from the bitter lessons of the conflicts in Rwanda, the Balkans, Sierra Leone, Liberia, East Timor and Cambodia, where hundreds of thousands, if not millions of men, women and children have been victims of unimaginable atrocities.
The Rome Statute did not only codify international human rights and humanitarian law, it did provide a mechanism for the enforcement of these international legal principles and norms. Firstly, the ICC now has a Palace of Justice in The Hague, the Netherlands with judges, a Clerks office and Office of the Prosecutor. Secondly, the ICC is set up on the basis of a complementary jurisdiction. What this means is that the primary responsibility to arrest, detain and prosecute perpetrators of these international crimes lies with the State Parties and when they fail, the Prosecutor of the ICC either on its own or through a referral by the Security Council of the United Nations will step in. Furthermore, the State Parties (countries that signed and ratified the ICC statute) are required to pass national implementing legislations which will make it a crime under the domestic laws the crimes prohibited by the ICC statute. Thus, the ICC will only act when national criminal justice systems are either unable or unwilling to genuinely carry out investigations or prosecution of these international crimes committed within its jurisdiction or by its nationals. It is important to note that the primary obligation to investigate and prosecute alleged perpetrators of these crimes lies with national authorities and therefore subject to political consideration.
The Gambia first signed and then ratified the Rome Statute on April 9th 2002, when the National Assembly unanimously adopted a motion tabled before it by the Secretary of State for the Interior who was overseeing the Department of State for Justice and the National Assembly. However, an implementing legislation is yet to be passed.
