Courtside at Kampala: Week One in Review

Within the two professional fields that I am surrounded by in Kampala, diplomacy and advocacy, there is one constant; the precise and careful use of words. Of course there are many fields that this applies to, but none with such careful craftsmanship and double entendres as you experience with the double whammy of a room full of lawyers and diplomats working towards the goal of amending the Rome Statute of the ICC.  In some cases here, words are used literally, like the use of the term "deterrence." 

Listening closely to the statements made on the floor by States, Prosecutor Ocampo, President Song and others here, I was struck by the breadth of the use of the term "deterrence" in describing the impact of the ICC to date.  I had recently heard the ICC Prosecutor speak eloquently in Washington DC about the deterrence effect of the Court, most recently at the Council of Foreign Relations when he spoke of his idea of the "shadow of the court" impacting the actions of intended criminals. But it was very interesting to see state parties to the ICC embracing this concept so warmly. Although the Court has been plagued with the normal teething problems associated with setting up a judicial body, one of the most basic principles of criminal law, deterrence, is becoming widely accepted as extending to The Hague as well.  Having the meetings here in Uganda reinforced this idea, not because there are not abuses still happening in this country, which there are, but because Kampala will be the host of the upcoming African Union Summit and has made clear that Sudanese President Omar Al-Bashir is not welcome here.  Bashir, as you know, is being sought by the Court for crimes against humanity, war crimes, and potentially genocide.  His travel and livelihood have recently been severely curtailed by travel bans being issued by African members of the ICC. 

In some cases in the world of advocacy and diplomacy, words are not necessarily as clear, and it is important that you peel back the layers of meanings to get at what the delegates here are really saying. An example is the use of the word "consensus" by diplomats. Consensus is commonly defined as an opinion or decision agreed upon by the whole.  But consensus here means something different depending upon who is saying it. The non-aligned movement, represented by Egypt, uses the term consensus as a means of reminding everyone that agreement, on issues such as the crime of aggression, have been made before Kampala; no measure of interference by the larger states, particularly the five permanent members of the UN Security Council, should disrupt it. Long-term member countries that are part of the "friends of the ICC" group led by Finland are seeking to use the term consensus as a bridge - such as "can't we just all get along" -  to promote agreements between diverging groups here while in Kampala. Then you have the US, other members of the UN Security Council, and often their state allies (eg. Germany is currently serving as a "proxy" for the US here in Kampala), who don't use the term "consensus." Instead they use the term "real consensus." Meaning, "let's not fool ourselves folks, we may have agreement on issues prior to arriving in Kampala, but now the heavy hitters are here and we need an agreement that reflects our national self-interest."  Despite the US repeatedly acknowledging that they were absent in the consensus-building proceedings on aggression for the eight years leading up to the meeting in Kampala, it has insisted that very little consensus existed to date. As Harold Koh said in a remark that did not go over well here in Kampala, "the only consensus that exists in the room is that there is no consensus."

Finally, I'll mention that by the end of Week one, there was an interesting shift from the use of the word "consensus" or "real consensus" to delegates saying that State parties need to come together and "compromise."  You will just need to wait, as I am, to see if compromise is possible here in Kampala. For some P5 and other heavy-hitting countries, compromise involves sacrificing what they perceive as their national self-interest.  For other states, compromise involves abandoning their principled approach in order to get to the finishing line. In the interests of protecting the future of the ICC, all countries may need to be willing to adopt a "lose, lose" strategy for the court to actually win.