Background Materials — Withdrawal

  • Relevant Treaties (in reverse chronological order)

  • Governments and Intergovernmental Organizations (alphabetical by organization, then reverse chronological order)

    • International Criminal Court, Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia—People’s Army (Sep. 1, 2016) available online.

      The Prosecutor describes the peace agreement reached by the Colombia government and FARC. The Prosecutor describes some positive aspects of the agreement, e.g., the final text of the agreement provides that “the peace agreement excludes amnesties and pardons for crimes against humanity and war crimes under the Rome Statute.” The peace agreement also established a “Special Jurisdiction for Peace,” which was expected to “ensur[e] that the perpetrators of serious crimes are genuinely brought to justice.” This statement was made prior to the Colombian referendum that rejected the peace agreement.

    • Michael Masutha, South African Minister of Justice and Correctional Services, Briefing to the media on the matter of the International Criminal Court and Sudanese President Omar Al Bashir (Oct. 21, 2016), available online.

      Press release by the South African government concerning their conflicting legal obligations. The obligation to arrest under the Rome Statute conflicts, in its view, with the head of state immunity under customary international law and domestic statutes which give also provide for immunity for heads of state.

    • U.S. Department of State, Office of Criminal Justice and Assistance Partnerships (INL/CAP), available online (last visited Nov. 17, 2016).

      Describes how the Bureau of International Narcotics and Law Enforcement Affairs and the Office of Criminal Justice Assistance and Partnership (INL/CAP) supports programs to help institutionalize sustainable criminal justice sectors, instill public trust in the Rule of Law and protect human rights. The article summarizes initiatives taken in, inter alia, Afghanistan, Iraq, Kosovo.

  • News Articles (reverse chronological order)

    • Kimberly Jane Tan, Why Duterte can’t be prosecuted by the ICC…yet, ABS-CBN News, Nov. 17, 2016, available online.

    • Duterte mulls following Russia in cutting ties with ICC, Philippine Star, Nov. 17, 2016, available online.

    • Ivan Nechepurenko & Nick Cumming-Brucenov, Russia Cuts Ties With International Criminal Court, Calling It ‘One-Sided’, N.Y. Times, , Nov. 16, 2016, available online.

    • Adam Taylor, Why so Many African Leaders Hate the International Criminal Court, Wash. Post, Nov. 6, 2016, available online.

    • Editorial Board, A Stronger Court for Crimes Against Humanity, N.Y. Times, Nov. 3, 2016, available online.

    • Abraham Joseph, Why Did South Africa, Burundi, and Gambia Decide to Leave the International Criminal Court?, The Wire, Nov. 1, 2016, available online.

      The author compares South Africa’s stated reason for withdrawal—conflicting legal obligations—with those of Burundi and the Gambia—perceived bias towards Africa. The author also speculates on whether these stated reasons by Burundi and the Gambia hold up when viewed in light of the potential ICC prosecution for abuses by their governments. He also discusses the role of the African Union in encouraging states to withdraw from the ICC.

    • John Mulholland & Ed Vulliamy, We must agree peace by Christmas or hope will end, says Colombian leader, The Guardian, Oct. 29, 2016, available online.

      Details the recent Colombian referendum that rejected the peace agreement reached by the government and FARC. This is one of the most recent articles written about the situation in Colombia, and is useful for readers who want to know about the different players involved in the peace agreement. Interestingly, the authors stress that “critics attacked one of the central tenets of the deal—the so-called system of ‘transitional justice,’ which meant FARC leaders could have avoided lengthy jail terms in return for confessing their crimes and working to build peace—saying it was too lenient.”

    • The International Criminal Court: Exit South Africa, The Economist, Oct. 29, 2016, available online.

    • Why African nations are pulling out of the ICC, New Europe, Oct. 27, 2016, available online.

    • Azad Essa, Africa’s withdrawal from the International Criminal Court reeks of hypocrisy, Wash. Post, Oct. 26, 2016, available online.

      Economic resasons are possibly the driving force behind South Africa’s withdrawal, and this decision goes against their long standing position in the fight for human rights.

    • Jane Onyanga-Omara, Gambia latest African nation to withdraw from International Criminal Court, USA Today, Oct. 26, 2016, available online.

      Gambia is the latest country to declare its withdrawal from the ICC. They follow in the footsteps of South Africa and Burundi. Reasons cited by the African nations for their withdrawal from the ICC range from accusations of racial targeting of colored people as well as inconsistencies between the Roma Statute and the withdrawing nations laws.

    • Botswana reaffirms support for ICC, ‘regrets’ SA decision, The Daily Maverick, Oct. 26, 2016, available online.

    • Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online.

      Describes South Africa’s decision to withdraw including the official reasons given and the events preceding the decision. South Africa is the second country to announce its intention to withdraw from the ICC. There’s a risk that other African nations will soon follow South Africa’s footsteps. Some African leaders have accused the Court of disproportionatley focusing on Africa. South Africa, in particular, has suggested that it is leaving the ICC because the Rome Statute is inconsistent with its laws granting immunity to the heads of states.

    • Jeffrey Gettleman, Raising Fears of a Flight From International Criminal Court, Burundi Heads for Exit, N.Y. Times, Oct. 12, 2016, available online.

    • Colin Freeman, New York hotel protest ‘led to Gambia’s Commonwealth exit’, The Telegraph, Oct. 3, 2013, available online.

      Maintains that the withdrawal of Gambia from the Commonwealth was triggered on a whim by President Jammeh as retaliation for a protest that occurred outside his hotel in New York before the UN General Assembly meeting.

    • Peter Popham, The International Criminal Court has its flaws, but is there an alternative?, The Independent, Feb. 4, 2016, available online.

      Subhead: “World View: The court needs to sign up more countries; to streamline its procedures; to mature. Because never before in history has there been a forum for the weak to obtain justice from those who would like to consider themselves all-powerful. It demands to be nurtured.”

    • AFP, African Union members back Kenyan plan to leave ICC, The Guardian, Feb. 1 2016, available online.

      Members of the African Union encourage states parties to pull out of the Court as they feel they are being targeted.

  • Non-Governmental Organizations (NGOs) (alphabetical by organization, then reverse chronological order)

    • Coalition for the International Criminal Court, Mandela legacy on the line as South Africa moves to leave ICC (Oct. 21, 2016), available online.

      South Africa (under Mandela) was a driving force behind the ICC and the progression of human rights in Africa. Withdrawing from the court is jeoparadizing this legacy and the progress South Africa made for human rights.

    • Jim Wormington, More Fear Than Fair: Gambia’s 2016 President Election, HRW (Nov. 2, 2016), available online.

      Details the human rights abuses that have escalated in response to the upcoming presidential election in Gambia that will occur in December 2016.

    • Human Rights Watch, Burundi: ICC Withdrawal Major Loss to Victims (Oct. 27, 2016), available online.

    • Human Rights Watch, South Africa: Continent Wide Outcry at ICC Withdrawal (Oct. 22, 2016), available online.

    • Why Africa Is Turning Its Back on the International Criminal Court, Stratfor (Oct. 27, 2016), available online.

      The common factor in the departure of all three countries is the underlying perception that the ICC is an outside institution imposing its will on African nations without their input, perpetuating a history of Western intervention and African oppression.

  • Articles (alphabetical by author)

    • Kristen Ainley, The International Criminal Court on trial, 24 Cambridge Rev. Int’l Aff. 309, 312 (2011). Available online, archived.

      Argues that the International Criminal Court, although defended as an apolitical organization, is indeed a political organization.

    • Dapo Akande, South African Withdrawal from the International Criminal Court—Does the ICC Statute Lead to Violations of Other International Obligations?, EJIL Talk (Oct. 22, 2016), available online.

    • Georgia Banjo, Burundi: Torture, Sexual Violence and Political Upheaval, Conflict Comment (Oct. 16, 2016), available online.

      Discusses the violence being committed by the Burundi government in Burundi after the President’s third election. Now, the people of Burundi are worried that withdrawal by Burundi would mean they might be able to avoid justice.

    • David Bosco, International Criminal Court Poised to Open Investigation into War Crimes in Afghanistan, Foreign Pol. (Oct. 31, 2016) available online.

      Details the efforts by the OTP to open an investigation in Afghanistan. While most attention would likely be focused on insurgent groups, the OTP may also investigate abuses by the Afghan government and US personnel. The specific allegations against the US involve detention policies in 2003-2005 and the attach against the MSF hospital in Kunduz in October 2015. The article also discusses the history of relations between the United States and the Court and the potential clash if the OTP were to target US personnel.

    • Rebecca Bowman, Lubanga, the DRC and the African Court: Lessons learned from the first International Criminal Court case, 7 Afr. Hum. Rts. L.J. 412, 443 (2007). Available online, archived.

      Argues that the International Criminal Court should display restraint in its acceptance of cases and, instead, pursue methods of bolstering national judiciaries. For example, the Court should focus on promoting judicial education as well as rule of law. Additionally, the Court should focus on United Nations Security Council referrals for cases.

    • Ryan Goodman, Justice Richard Goldstone: South Africa’s Attempt to Withdraw from Int’l Criminal Court is Unconstitutional, Just Security (Oct. 21, 2016), available online.

      South African Jurist Richard Goldstone gives his opinion about South Africa’s notice of withdrawal from the Rome Statute saying that it “is unfortunate on legal, moral and political grounds.”

    • Christine M. Hart, Learning From South Africa: The TRC, The ICC and The Future of Accountability, 12 J. Pub. Int’l Aff. 25 (2001), available online.

      Mechanisms that provide accountability but fall short of formal prosecution should be respected and supported by the ICC.

    • Balingene Kahombo, The Theory of Implicit Waiver of Personal Immunity: Commentary on the Decision on the Obligation for South Africa to Arrest and Surrender President Omar al-Bashir of Sudan to the International Criminal Court, 18 L. in Afr., 181-198 (2015). Available online, archived.

      Abstract: “This commentary examines the meaning of the International Criminal Court’ s (ICC) Decision of 13 June 2015 on the particular point of the theory of implicit waiver by the Security Council of personal immunity of a sitting head of state not party to the Court’ s Statute. It is argued that this theory is inherently illegal and yet another error in the ICC’ s judicial findings in Omar al-Bashir case. To demonstrate this assertion, the study suggests that the theory of implicit waiver of personal immunity is defective in the present case on two principal points. First, it contradicts with previous ICC’ s judicial findings on the same matter; secondly, it creates a serious misunderstanding on the intent and the power of the Security Council when it decided to refer the situation in Darfur to the Court.”

    • Mark Kersten, The ICC and Africa (Part 1), Just. Hub (Jul. 16, 2015), available online; Mark Kersten, The ICC and Africa (Part 2), Just. Hub (Jul. 23, 2015), available online; Mark Kersten, The ICC and Africa (Part 3), Just. Hub (Jul. 30, 2015), available online.

      Argues that the discussion of “African bias” is misunderstood and misled. Criticisms over the bias are made because of various political and historical reasons, not based on the fact. Also, the ICC has not made a sophisticated response to these criticisms, and open and frank discussions between African countries and the ICC have not been made. An analysis about both “Why the ICC investigated a case” and “Why the ICC did not investigate a case” should be made in order to see if the African bias issue has a point.

    • Asad G. Kiyani, Al-Bashir & the ICC: The Problem of Head of State Immunity, 12 Chinese J. of Int’l L., 3, 467-508 (2013). Available online, archived.

      From Abstract: “This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial claims: either that the Security Council can override customary international law rules of treaties and immunities, or that the law of immunities already provides an exception that invalidates al-Bashir’ s protection.”

    • Luis Moreno-Ocampo, From Brexit to African ICC Exit: A Dangerous Trend, Just Security (Oct. 31, 2016) available online.

      The former Prosecutor of the ICC argues that the discussion on African bias overlooks that there are currently African heads of states planning or committing massive atrocities to retain power, and that the ICC is currently the only institution designed to be effective at preventing and punishing international crimes. Moreno-Ocampo argues that the international legal order is going backwards.

    • Aryeh Neier, Africa Versus the International Criminal Court, Project Syndicate, Nov. 7, 2016, available online.

      Describes some of the legal issues surrounding the African withdrawals including the status of ongoing proceedings, and the time that must pass before the countries can officially withdraw. This article also provides a good overview of the particular issues surrounding South Africa’s decision to withdraw including the question of the legality of the announcement and controversies within the South African government.

    • Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 236 (2016). Available online, archived.

      Argues that the International Criminal Court should defer to regional courts, especially when such courts are supported by various individuals and groups, such as political activists. Indeed, regional courts are better equipped to promote law in a domestic setting, because a state party’s specific rules likely resonate with local citizens.

    • E. Van Trigt, Africa and Withdrawal from the ICC, Peace Palace Lib. (Oct. 28, 2016), available online.

    • Alex Whiting, South Africa’s ICC Withdrawal: Why? And What Now?, Just Security (Oct. 22, 2016), available online.

      “In one sense, the decisions of Burundi and South Africa show the power of the law. Both governments are running from the law, which would not be necessary if they thought that the law was powerless and irrelevant.”

    • Alex Whiting, If Burundi Leaves the Int’l Criminal Court, Can the Court Still Investigate Past Crimes There?, Just Security (Oct. 12, 2016), available online.

      Whiting argues that a preliminary examination may or may not fulfill the requirements of the Rome Statute, Article 127, in retaining jurisdiction in Burundi. It is uncertain. To be certain, the article recommends the ICC launch a formal investigation into the Burundi government in order to retain jurisdiction before the Burundi government officially withdraws within the year.

    • Hannah Woolaver, International and Domestic Implications of South Africa’s Withdrawal from the ICC, EJIL Talk (Oct. 24, 2016), available online.

      States the implications for the legal landscape in South Africa, the position of other African States in the ICC and the leading to a fundamental weakening of the ICC.

  • Books (in alphabetical order by author)

    • Steffen Eckhard, International Assistance to Police Reform: Managing Peacebuilding (Palgrave Macmillan UK, 2016).

      Compares police reform operations in Kosovo and Afghanistan, addressing the internal machinery that makes peace operations work—or not. Four case studies examine operations in Kosovo and Afghanistan before and after the European Union took over police reform responsibilities.

    • Morgan Greene, Jonathan Friedman & Richard Bennet, Building the Police Service in a Security Vacuum: International Efforts in Kosovo, 1999-2011, in Innovations for Successful Societies (Princeton University, Feb. 2012). Available online, archived.

      By using Kosovo as an example the case study presented by the authors shows how a sustained effort by the international community can produce an effective police service in the wake of conflict.