Background

In June of 2015, South Africa hosted the 25th annual African Union Summit. While South Africa faced international, domestic, and ICC pressure to arrest Sudanese President Al Bashir, who has been indicted by the ICC, in the end, South Africa decided to honor Al Bashir’s head of state immunity under customary international law. The decision to not arrest Al Bashir led to a wave of harsh criticism, which eventually resulted in the government of South Africa being sued in its own Supreme Court of Appeal.3 In addition to the litigation and political fallout, Minister of Justice and Correctional Services Michael Masutha stated the failure of the ICC to resolve South Africa’s pre-AU summit request to “clarify the apparent contradiction” of the head of state immunity dilemma as yet another factor in its decision to withdraw.4

Article 27 of the Rome Statute states “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”5 Conversely, Article 98 says that the Court may not “proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State…”6 On its face, it is this apparent contradiction which has prompted South Africa to pull out of the ICC.

Proposal

In order to resolve this apparent discrepancy between the Rome Statute and customary international law, the Court can and should persuade South Africa to stop its withdrawal by either 1.) clarifying the head of state immunity problem or by 2.) amending the Rome Statute to allow for a head of state immunity exception. Although either course of action would require a great deal of obstacles and may lead to the Court being criticized as political, this resolution is necessary to garner again South Africa’s support, thus dissuading other African states parties from withdrawing. This showing of good will can hopefully bring an end to the impending crisis.

Interpreting the Rome Statute as being internally consistent, it can be argued that there is no contradiction between Article 27 and Article 98 of the Rome Statute. One feasible interpretation is that although the Rome Statute attaches criminal responsibility to all persons—even heads of state—the Statute prohibits the Court from compelling a state party to arrest an indictee if by doing so, the state would be forced to break customary international law with regard to head of state immunity. This particular interpretation would allow countries like South Africa to abide by the mandates of the Rome Statute, while still allowing them to honor head of state immunity.

Of course, this interpretation of Articles 27 and 98 is not without obstacles. Indeed, the Court has explicitly rejected this interpretation on prior occasions. In the 2011 Malawi noncooperation decision, the Pre-Trial Chambers decided that “customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.”7 This finding was subsequently reiterated the following day in the Chad noncooperation decision.8 If the Court determines that the best course of action is an interpretation of Articles 27 and 98 which recognizes head of state immunity, it should sua sponte renounce its Pre-Trial Malawi and Chad decisions. In addition, the Court should submit an official statement delineating the new interpretation of Articles 27 and 98 that recognizes a state party’s prerogative to honor head of state immunity.

Should the ICC be constrained in its ability to define a new interpretation of Articles 27 and 98, the Assembly of States Parties should move to enact an amendment pursuant to Article 121 which would allow states parties to honor head of state immunity despite an indictment by the Court. With the upcoming Fifteenth Session of the Assembly of States Parties on November 16, 2016, states parties should be thinking of ways to amend the Statute to allow for a head of state immunity exception. This amendment would likely, in turn, bring South Africa back into supporting the Court and send a loud and clear message to African countries that their voices have been heard and their continued support is needed and desired.

Aside from assuaging the South African concerns about the Court’s inability to resolve its dilemma, a head of state immunity exception to the Rome Statute would also have other ancillary effects, namely restoring faith in the Court from African states that have had similar hesitations regarding the head of state immunity discrepancy—countries such as Kenya and Sudan.

On the other hand, by recognizing a head of state immunity exception, the ICC might be criticized as undermining its specific mandate “to put an end to impunity for the perpetrators of these crimes.”9 Under this new interpretation or amendment to the Rome Statute, states parties would not be required to arrest indicted heads of state, thus decreasing the chances for arrest and prosecution. The ICC would likely have to wait out the head of state’s incumbency before an arrest could be effectuated; if the head of state were to die in office, there likely would be no chance to prosecute. Effectively granting immunity to those most responsible for these atrocities would seem at odds with the goals of the Court. These are difficult realities to consider, but in the end, the ICC may have to take action that would shield heads of state from arrest, if by doing so, the Court would continue to live on.

Conclusion

To prevent the mass exodus of African states parties and ensure the continued existence of the ICC, it is imperative for the Court to take swift action to win back the support of South Africa. Specifically, the Court would likely succeed in this project by recognizing a head of state immunity exception, either by clarifying the interpretation of Article 27 and Article 98 or by amending the Rome Statute. While regaining South Africa’s support is crucial to obviate an imminent dissolution of the ICC, much more still needs to be done in the future for the ICC to overcome its perception as a biased, neocolonialist court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See 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. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], at Articles 27(1), 98. ↩

3. 3.

   See The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15) [2016] ZASCA 17 (Mar. 15, 2016), available online. ↩

4. 4.

   See Press Conference, Michael Masutha, South African Minister of Justice and Correctional Services, Briefing on South Africa’s Withdrawal from the ICC, YouTube (Oct. 21, 2016), available online. ↩

5. 5.

   Rome Statute, Article 27(1)

   (“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute”). ↩

6. 6.

   Rome Statute, Article 98(1)

   (“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”). ↩

7. 7.

   The Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Pre-Trial Chamber I, Dec. 12, 2011), available online. ↩

8. 8.

   See The Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, at ¶ 14 (Pre-Trial Chamber I, Dec. 13, 2011), available online. ↩

9. 9.

   Rome Statute, Preamble ↩

Launching a formal investigation may seem like a political or a retaliatory move. It may seem that the ICC is only launching a formal investigation because the ICC does not want other states parties to withdraw or because the ICC is retaliating against Burundi. However, all the ICC needs to say is that this could be the last chance that the Burundi government could be held responsible for the crimes committed. The local Burundi prosecutors are not likely to do much because prosecutors are generally influenced by the government. The only justice the victims will receive is if the ICC retains jurisdiction by launching a formal investigation. A reasonable person should be able to understand the situation. As long as the situation is explained, people are not likely to view the formal investigation as a political or a retaliatory move.

Finally, the Burundi government “claimed the [ICC] is an instrument of powerful countries used to punish leaders who do not comply with the West.”9 The preliminary examination into the Burundi government occurred on April 2016. Coincidentally, the Burundi government decided to withdraw from the ICC after a couple of months since the announcement of the preliminary examination. The real reason the Burundi government is withdrawing is because they are trying to avoid responsibility for the alleged crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

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

2. 2.

   Id. ↩

3. 3.

   Burundi walks away from the ICC, IRIN, Oct. 19, 2016 [hereinafter Walks Away] available online, ↩

4. 4.

   Id. ↩

5. 5.

   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. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 127. ↩

7. 7.

   Whiting, supra note 5. The withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” See id. ↩

8. 8.

   See Walks Away, supra note 3. ↩

9. 9.

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

By making High Risk Countries (more) capable of prosecuting their own citizens for committed atrocities, this might prevent (or at least reduce the risk of) High Risk Countries from withdrawing from the Rome Statute. High Risk Countries will be more prone to remain a signatory to the Rome Statute if the High Risk Countries have the resources and expertise to handle their own matters, i.e. prosecute their own citizens and leaders.

Conversely, High Risk Countries will be more likely to withdraw from the ICC if they cannot prosecute—even if they wanted to—citizens and leaders who have committed atrocities comprised by the Rome Statute and the jurisdiction of the ICC.

Legal expertise and resources from High Resource Countries could be in the form of sending lawyers, judges, prosecutors and/or other relevant staff from the legal profession (legal secretaries, government officials etc.), to High Risk Countries for a longer or shorter period of time in order to help training and educating the before mentioned equivalents in these High Risk Countries.

In combination with the above, all States Parties should also consider providing some financial support to the High Risk Countries earmarked to cover expenses associated with improving the physical framework necessary to prosecute the perpetrators in the High Risk Countries, such as courtrooms, meeting facilities, libraries with legal literature etc.

The overall reasoning behind the above-suggested initiatives is simple:

A high degree of involvement from the international community (especially from countries with extensive legal resources, expertise and experience, i.e. High Resource Countries) in High Risk Countries will in the long run eliminate (or at least significantly reduce) the need of involvement from the international community/High Resource Countries. When the High Risk Countries become (more) capable of handling their own matters, the High Resource Countries can withdraw their lawyers, judges, prosecutors etc., who had been sent to the High Risk Countries. Such withdrawal cannot happen from one day to the other, but must be carefully considered and done over time.

The above-described initiative will contribute to the fundamental, institutional development of the judicial system in the High Risk Countries. It cannot be determined in advance or in general how much assistance a specific country will need or for how long. This must be decided on a case-by-case basis and in close corporation with the country in question.

It must be underscored that the involvement of High Resource Countries can only be successful long-term if such involvement is based on corporation with, acceptance and inclusion by the involved High Risk Countries. Hence, legal expertise and resources provided by High Resource Countries may not be unilaterally imposed on the High Risk Countries without their consent, and may only be done to the extent the High Risk Countries agree. Otherwise, the assistance provided by the High Resource Countries will easily be seen as an act of Western imperialism instead of a genuine offer of help and assistance enabling the High Risk Countries to handle their own matters without interference by the ICC and/or Western countries.

Similarly, the financial support should decrease over time as the fundamental, physical prerequisites for prosecuting atrocities in the High Risk Countries (courtrooms, meeting rooms etc.) have been established and only need to be maintained. It is not the intention that High Resource Countries on a permanent basis should finance the maintenance of other countries’ legal infrastructure.

The above described approach have been used several times in relation to helping countries educating and training police forces in the process of rebuilding the countries after the end of an armed conflict in such countries, such as civil war and/or the international community’s use of military force/intervention. Such initiatives have over time helped establish law and order in countries such as Kosovo, Sudan, Iraq, Bosnia and Afghanistan. In these situations the international community has provided experienced police staff, government officials, developed training programs for police officers etc. All with the purpose of enabling the police forces in said countries to function without assistance or intervention from the international community, and in order to (re)establish law and order in a structural and long-lasting manner.

How successful the initiatives have been in relation to (re)establishing a police force in the above mentioned countries, and how successful legal and financial assistance to High Risk Countries is not easy to measure. The mentioned approach will require a sufficiently long time horizon giving the initiatives in the High Risk Countries time to be established, developed and adopted. It goes without saying that something like this takes time because it is not only a matter of building courtrooms, but about creating a judicial system and a legal culture in the High Risk Countries, making such countries capable of investigating and prosecuting atrocities, which would otherwise have been handled by the ICC.

It is, however, considered more likely than unlikely that providing legal staff, training, experience exchange and financial assistance from the international community to High Risk Countries will have a positive effect on the judicial systems in the High Risk Countries. And this positive effect should then (to some extent) make it less likely that the High Risk Countries withdraw from the ICC. The High Risk Countries are in a better position to prosecute crimes against humanity than before the international community provided the assistance (in the form of sending trained judges, prosecutors, lawyers etc. to the High Risk Countries as described above). Consequently, it becomes less relevant for ICC’s prosecutor to initiate investigations and legal proceedings in said countries because they can do it themselves.

It is of course a very different question whether the High Risk Countries are then actually willing to prosecute its own citizens and leaders when/if their judicial systems have been made capable of doing so. However, as a beginning the international community should at least help to bring the High Risk Countries in a position where they can prosecute crimes covered by the Rome Statute themselves. Other measures must then be considered to force or incentivize the High Risk Countries to actually use the judicial system and prosecute their citizens.

In addition to greater coordination with the UNSC, the ICC can simultaneously pursue cooperation with regional courts, such as the East African Court of Justice. The ICC can combat possible criticisms of bias and impunity by working closely with regional courts, which would allow the Court to be more attuned to regional beliefs and to consider the nuances of issues, such as human rights, within a specific country’s sociopolitical framework.6 Further, with greater cooperation, the ICC would likely bolster the legitimacy of the regional courts, while also diminishing the perception that the Court is simply imposing its own values on any state party.

In deferring to UNSC referrals and working closely with regional courts, the ICC would be able to strike a balance between granting an exemption from punishment and being perceived as overly aggressive or biased towards certain states parties. Additionally, greater cooperation between regional and international institutions can result in greater efficiency in addressing wrongful conduct, as well as a better understanding of the political and cultural nuances within each country.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

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

2. 2.

   Id. ↩

3. 3.

   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. ↩

4. 4.

   Id. ↩

5. 5.

   Cooperation and the International Criminal Court: Perspectives from Theory and Practice 167 (Olympia Bekou & Daley J. Birkett eds., 2016). ↩

6. 6.

   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. ↩

Political Action Should Be Taken by the States Parties Rather Than the Court

The ICC must operate with the mission to be an objective judicial body, void of politically motivated action. Proponents of the court have defended it specifically for its ability to move away from power politics and towards common ethical goals.4 Although it is likely impossible for an organization such as the ICC, which has over one hundred political bodies as members, to operate absolutely apolitically, it must actively attempt to shun political action whenever possible in order to preserve its reputation as an objective judicial body; this is necessary in order to protect the court’s legitimacy in the eyes of the states parties and the international community.

With these considerations, actions necessary to preserve the court and nurture its growth (which will inevitably require political action in order to influence countries to maintain a continued commitment to fight for international justice and human rights) should be undertaken by the members who chose to give birth to the ICC rather than the Court itself. There is much that can be done by the states parties; the United Arab Emirates and Germany, for instance, are crucial trading partners to the Republic of Burundi and the Republic of South Africa respectively.5 If these countries were to make clear that continued trade relations would be compromised for countries that did not make firm commitments to a continued adherence to the Rome Statute, this would create an incentive for the states parties to maintain their membership with the ICC and to conduct itself accordingly. It should be noted that the responsibility to help preserve membership is not meant to fall upon a single state party; all states parties should be proactively seeking to create incentives for other states to join and maintain membership. This collective action is essential for two reasons. First, by acting as a collective, the states parties will establish a network of benefits that would incentivize current and potential members to accept the Rome Statute and to commit itself to opposing the most heinous criminal offenses. Second, a global reaction to dissuade withdrawal is essential to show that the ICC is not a weapon of neocolonialism6 but, rather, an international effort to stop mass atrocities.

The Court Must Acknowledge Criticism and Take Action to Maintain Its Image as an Objective Judicial Organization

Although the ICC must hold firm on its mission to act as an objective organization, free of undue outside political influence, it would be prudent for the court to pay attention to the criticism it faces today. The reasoning offered for withdrawal by Gambia, Burundi, Kenya, and the other African states parties is not without complete logic. Certainly, an objective, non-racially motivated court could operate as the court has. The ICC has done well to point out the obvious when faced with accusations of racial profiling (that all but a single instance of the court’s prosecutorial action in Africa were brought about through referrals and not the independent action of the prosecutor).7 However, given that every case that has been tried has been of an African country—and each individual leader faced with prosecution has been of African descent—it should not surprise the court that African countries would point out the disproportionate prosecutorial focus on Africans. Operating as an objective court must be balanced with efforts to shed any misperception of impropriety, especially on grounds as atrocious as being racially motivated. The ICC should take into account that measures to correct an imbalance in the geographic focus of its prosecutions does not need to be an admission that it is acting in accord to political pressure. Rather, it should take it as notice from current states parties that the court is not being perceived as acting objectively, which is equally important to the court acting in an apolitical manner in order to maintain legitimacy. Fortunately, the court has already begun making preliminary investigations into non-African countries.8 The court need not do any more than continue its efforts to make sure that these countries have been thoroughly investigated, as it has done in its past prosecutorial efforts. With further development into the cases involving non-African countries, the court would have stronger evidence that it is acting as an objective judicial body, thereby strengthening its image as a fair organization.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Jane Onyanga-Omara, Gambia Latest African Nation to Withdraw from International Criminal Court, USA Today, Oct. 26, 2016, available online.

   (“Gambia’s withdrawal was the third country to pull out in two weeks, after Burundi and South Africa.”). ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

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

5. 5.

   See Observatory of Economic Complexity, Burundi, available online (last visited Nov. 11, 2016). See also Observatory of Economic Complexity, South Africa: Destinations, available online (last visited Nov. 11, 2016). ↩

6. 6.

   See, e.g., Charles Achaleke Taku, International Politics and Policy Considerations for the Inappropriate Targeting of Africa by the ICC OTP, in Contemporary Issues Facing The International Criminal Court 338 (Richard H. Steinberg ed., 2016), available online. ↩

7. 7.

   See, e.g., Margaret M. deGuzman, Is the ICC Targeting Africa Inappropriately? A Moral, Legal, and Sociological Assessment, in Contemporary Issues Facing The International Criminal Court 333 (Richard H. Steinberg ed., 2016), available online. ↩

8. 8.

   International Criminal Court, Preliminary examinations, available online (last visited Nov. 7, 2016). ↩

Firstly, it is important to note that South Africa, Burundi, and the Gambia have only expressed their intention to withdraw and have not officially done so yet. Therefore, all three countries will continue to be members of the ICC for at least another year.2 So the major question is whether the ICC can take measures in the interim to either prevent the countries from withdrawing or mitigate the damage resulting from their withdrawals. In answering this question, I will focus my analysis primarily on South Africa not only because of its status as a leader in Africa and one of the early proponents for the creation of the court, but also because the withdrawals of both Burundi and the Gambia seem to be purely inspired by a desire to avoid international scrutiny of ongoing human rights violations by their respective leaders. The best response to these opportunistic withdrawals is to launch investigations into human rights abuses perpetrated in these countries before the one-year period expires. The ICC has already begun an investigation of Burundi and should also do so in the Gambia.3

The catalyst for South Africa’s withdrawal was its refusal to arrest Sudanese President Omar Hassan Al-Bashir on his official visit to South Africa in 2015. This refusal was seen as a repudiation of its mandate to arrest wanted criminals under the Rome Statute, and drew harsh criticism from the international community. Subsequently, South Africa cited “legal uncertainty” as the major reason for its withdrawal from the ICC, stating that the Rome Statute “blocks South Africa from resolving conflicts through dialogue, including inviting adversaries for visits” and that it “‘is in conflict and inconsistent with’ South Africa’s law giving sitting leaders diplomatic immunity.”4 Another resounding concern expressed by many African nations is that the ICC seems to have focused all its efforts in prosecuting Africans to the exclusion of all other human rights abusers. All of these concerns, if legitimate, can be addressed effectively through discussions with South Africa and any other nation that might seem vulnerable to withdrawal. In fact, the court must address these concerns if it is to retain its legitimacy.

Negotiations will allow the court to fully gauge South Africa’s true motives for withdrawal and propose appropriate solutions to good faith concerns. There are various diplomatic and unofficial solutions that could be offered by the court in negotiation discussions. For instance, the court could offer to invest its own resources to engage legal experts to advise the South African government on how to comply with both the Rome Statute and existing South African law. Alternatively, it could offer to advise South African lawmakers on how to draft local legislation to comply with the Rome Statute. The court could also issue new enforcement guidelines in response to specific concerns voiced by South Africa, including outlining enforcement priorities and goals regarding the arrest issue. This would allow the court to provide realistic compromises to state leaders in the short term while working towards stricter enforcement over time. This would also give nations time to adopt the mandates of the Rome Statute into their local legal norms over time without feeling pressured to completely overhaul their local laws and customs overnight.

Even if these discussions do not result in immediate solutions such that South Africa decides to remain in the ICC, they will help dispel criticism that the court is not concerned with hearing what Africans have to say but instead is concerned only with indicting African peoples and nations. Getting South Africa (and other concerned member states) to the table and conducting arms-length negotiations, and actually addressing their concerns rather than dismissing them out of hand is the best way to show African nations that the ICC is not just another imperialistic power concerned with telling Africans how to conduct their lives. This is not just an altruistic concern but also necessary to stop corrupt and despotic leaders from exploiting the rhetoric of a racist, imperialistic court to withdraw from the ICC in order to perpetuate or turn a blind eye to human rights atrocities in their countries.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Joel Wickwire, South Africa to Withdraw From International Criminal Court, Liberty Voice, Nov. 7, 2016, available online. ↩

2. 2.

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

3. 3.

   ICC to Investigate Burundi Political Violence, Al Jazeera, Apr. 25, 2016, available online. ↩

4. 4.

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

The Rome Statute, the Court’s governing document, does not explain what types of proceedings satisfy its complementarity provision, which provides that the Court can exercise jurisdiction only when a state party is unable or unwilling to prosecute or investigate an alleged violator of human rights.7 Broadening the interpretation of prosecution and investigation beyond the western definitions associated with these terms allows the ICC to incorporate alternative forms of justice in its complementarity definition; thereby recognizing the sovereignty and legitimacy of non-western standards for justice. This paper examines the compatibility of one such alternative form of justice, South Africa’s Truth and Reconciliation Commission (“TRC” or the “Commission”), with the Rome Statute’s complementarity provision. The means by which the Court can best effectuate this broader interpretation, whether through a public statement by the Prosecutor or by recognizing it in the Regulations of the Office of the Prosecutor, are outside the scope of this paper.

Argument

Complementarity Provision Under the Rome Statute

The ICC’s jurisdiction is triggered when a state party is “unwilling or unable” to prosecute international crimes subject to the jurisdiction of the Court.8 Article 17 of the Rome Statute provides that a case is inadmissible when it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State in unwilling or unable genuinely to carry out the investigation or prosecution.”9 Also inadmissible are cases in which the State of jurisdiction has decided not to prosecute the person committing the crime, if such decision did not result from the “unwillingness or inability of the State genuinely to prosecute.”10

Pursuant to Article 17, the Court must respect domestic prosecutions and investigations. However, the Statute does not provide what types of proceedings or investigations satisfy the complementarity requirement. Therefore, it is not clear whether domestic amnesties, which differ from western norms of prosecution and investigation, fulfill the Statute’s complementarity requirement. Understanding whether such non-western forms of justice satisfy the Rome Statute’s complementarity provision is of great significance. If complementarity is satisfied only when a state party prosecutes its criminals according to western norms of prosecution (i.e. trial by a judge or jury), then the perception that the ICC is a neo-colonial institution trying to impose its western values on states parties may be justified. On the other hand, if the ICC refuses to prosecute an accused person on the ground that the state of jurisdiction has held the person accountable through its own unique form of justice (i.e. some form of restorative justice mechanism), the argument that the ICC is imposing its western values of justice on its states parties loses ground.

South Africa’s Truth and Reconciliation Commission (TRC)

The TRC was created in 1994 to investigate the atrocities perpetrated during the Apartheid regime.11 The Commission’s objectives were to:

1. establish a complete picture of the extent and causes of gross human rights violations during the Apartheid regime,

2. grant amnesty to those perpetrators who fully and publicly disclosed their crimes,

3. allow the victims of human rights violation to testify to their experiences

4. recommend reparative and rehabilitative measures for the victims, and

5. publish a report on the Commission’s findings and provide a set of recommendations with the goal to prevent future human rights violations in the country.12

The TRC was designed to hold perpetrators of gross human rights violations accountable by forcing them to publicly take responsibility for their actions.13 The perpetrators who confessed to their crimes completely and truthfully were granted amnesty and did not face judicial punishment.14 The Commission considered prosecution in cases where the offender did not make a full disclosure of all the facts relating to his past crimes.15

Compatibility of TRC with ICC’s Mandate

The main issue regarding the ICC’s consideration of domestic amnesties such as the TRC in its complementarity determination is whether the structure of such practices comports with the Rome Statute’s requirement of prosecution and investigation. The Rome Statute’s Preamble, against which its articles are to be interpreted, provides that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”16 The Preamble further states, “it is the duty of every state to exercise criminal jurisdiction over those who have committed international crimes.”17

Some scholars have suggested that the Preamble’s emphasis on punishment and effective prosecution seems to indicate that domestic amnesties such as the TRC should not be considered by the Court as satisfying complementarity.18 Domestic amnesties focus on rehabilitation as opposed to punishment. On the other hand, it can be argued that the Commission punishes and holds the accused accountable by requiring him to confess to his crimes. Some scholars have argued that the kind of accountability and punishment the TRC establishes is just as effective as that established by prosecution because the public acknowledgment of past atrocities carries with it a shame far worse than the shame of going to prison.19

There are two possible ways through which the Prosecutor can recognize and respect domestic amnesties, like the TRC, that would be consistent with the Rome Statute. First, the ICC’s Prosecutor has discretion to refuse to prosecute or investigate a person who has come before the TRC and has been granted amnesty. Article 53(1)(c) of the Rome Statute provides that in deciding whether to initiate an investigation, the Prosecutor shall consider whether “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”20 Therefore, the Prosecutor has discretion not to prosecute a perpetrator who has made a complete disclosure of his past atrocities before a tribunal like the TRC if the prosecution would not “serve the interests of justice.” It has to be noted that a broad interpretation of the phrase “interests of justice” opens the door to a great amount of latitude for the Prosecutor, which in turn can delegitimize the Court. However, given the importance of the ICC’s recognition of other countries’ preferred justice mechanisms for the purpose of its complementarity determination, it makes sense for the Prosecutor to invoke his discretionary power in this context.

Second, it can be argued that the TRC constitutes an investigation under the Rome Statute and therefore, prohibits the Prosecutor to pursue the case under Article 17.21 For instance, the TRC can be considered as the South Africa’s investigation mechanism to determine which cases are to be prosecuted and therefore the state’s decision not to prosecute the person committing the crime must be respected by the Prosecutor according to Article 17.

On the other hand, domestic amnesties like the TRC can be invalidated on the basis of the state’s unwillingness to prosecute its violators of international law. The Rome Statute provides that to determine unwillingness, the Court shall include whether:

1. the proceedings were undertaken to shield the persons concerned from criminal responsibility,

2. there has been “unjustified delay” in the proceedings, and

3. the proceedings were conducted impartially in a manner consistent “with an intent to bring the person concerned to justice.”22

Therefore, the TRC, can be viewed as a mechanism created to shield criminals since its very purpose is to grant amnesty in exchange of full disclosure of truth. However, the Rome Statute leaves room for an interpretation of Article 17 that would exclude domestic amnesties as a form of a state’s unwillingness to prosecute its criminals. For instance, by applying the unwillingness language to the TRC, the Court could interpret unwillingness as an attempt to grant amnesties to perpetrators who have not been completely truthful before the Commission based on the evidence gathered by the Commission. Unwillingness could also be interpreted as an attempt to unduly delay the recommendation to prosecute an accused who has not made a complete disclosure.

Conclusion

The decision to recognize domestic amnesties as legitimate mechanisms in determining complementarity has serious implications and cannot be made without difficult determinations regarding the meaning of justice, punishment, and accountability. In this respect ICC faces two options. It can serve its mandate exclusively through the western notions of justice, prosecution, and investigation or it can be more accommodating of other nations’ understanding of these concepts. Either choice has its challenges and difficulties. However, the ICC’s decision to be sensitive to its states parties’ preferred standard of justice will enhance these states parties’ efforts to prosecute and address violations of human rights and will directly contradict the argument that the Court is yet another neo-colonial institution. This decision might in turn dissuade other states parties from withdrawing from the Court or change the decisions of those countries that have already decided to leave the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

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

2. 2.

   Id. ↩

3. 3.

   Noah Feldman, International Criminal Court Is Too Focused on Africa, Bloomberg News, Oct. 25, 2016, available online. ↩

4. 4.

   Gambia Latest African Country to Withdraw From International Criminal Court, Voice of America, Oct. 26, 2016, available online. ↩

5. 5.

   Sewell Chan & Marlise Simons, supra note 1. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble. ↩

7. 7.

   Id. at art. 17. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Truth Commission: South Africa, USIP (Dec. 1, 1995), [hereinafter Truth Commission], available online. ↩

12. 12.

    See 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. ↩

13. 13.

    Id. at 30. ↩

14. 14.

    Truth Commission, supra note 11. ↩

15. 15.

    Shaun Benton, New Policy on Apartheid Crimes, Brand South Africa (Jan. 18, 2006) available online. ↩

16. 16.

    Rome Statute, Preamble. ↩

17. 17.

    Id. (emphasis added). ↩

18. 18.

    See Hart, supra note 12, at 33. ↩

19. 19.

    Id. at 29. ↩

20. 20.

    Rome Statute, art. 53. ↩

21. 21.

    See Hart, supra note 12, at 34. ↩

22. 22.

    Rome Statute, art. 17(2). ↩

Step one of this strategy would involve determining whether a particular state party is at risk to withdraw from the Rome Statute. The three most recent cases, and the catalysts for this interim forum question, are Burundi, Gambia and South Africa; the strategy advocated here would only reach South Africa. Still, the stated reasons for withdrawal can give some clues as to what states parties may be at risk in the future. South Africa’s decision to withdraw was based on the conflict between its obligation under the Rome Statute to arrest sitting President Omar Al-Bashir of Sudan and the international law principle of head of state immunity.4 Another potential conflict between international legal obligations could involve Afghan cooperation with the Court and its status of forces agreement (“SOFA”) with the United States. While the possibility is remote, it is at least theoretically possible that the increased scrutiny by the Prosecutor on U.S. action in Afghanistan could lead to arrest warrants against U.S. personnel.5 Afghanistan would be obligated by the Rome Statute to arrest and extradite those personnel while being simultaneously barred from doing so by its SOFA with the United States.6 Potential conflicting legal obligations in States where rule of law is valued could signal that a state party is at risk for withdrawal.

Burundi and Gambia give the Court’s bias against Africa as their reason for withdrawing.7 While ongoing human rights violations suggest that this is not the real reason for their desire to withdraw, it is worth considering that a bias towards investigating and prosecuting Africans is a legitimate concern. Identifying states parties with such legitimate concerns would provide an additional method of determining whether or not a given state party is a withdrawal risk. Outreach by the Registry could help to address these concerns by educating civil society about the process for gaining jurisdiction, opening investigations, and deciding whom to prosecute. Africa makes up the vast majority of the Court’s docket and most of its attention, but publicly pointing to the race-neutral reasons for this phenomenon could mitigate the perception and make those States with legitimate concerns good candidates for outreach.

Step two would require determining whether outreach to civil society and non-governmental organizations within the state party is likely to influence foreign policy away from withdrawal. Obviously, democracies with strong civil societies would make the best candidates. Absolute dictatorships would fall on the opposite end of the spectrum and be poor candidates for Registry outreach. In the middle would be all other government types with individual indicators of how democratic they are. Executive constraint, judicial independence, developed and independent media, and political engagement by civil society, along with many other factors, could all indicate how democratic a government is and thus how good a candidate they would be for Registry outreach.8

Step three would require identifying those actors within the state party who would be most susceptible to Registry persuasion and best situated to influence foreign policy. This would be a highly individualized determination based on the nature of the state party’s grievance with the Court and where influential individuals and organizations are situated within their respective societies. Centers of gravity for this type of outreach could include tribal leaders, opposition political leaders, media pundits, and academics. Depending on the individual situation, direct diplomatic overtures or assistance to legal institutions in resolving their worries over the Court could also help prevent further withdrawals from the Rome Statute.

The form of outreach would also need to be tailored to the individual situation. If a state party is considering withdrawal because of the perceived bias towards Africa, then working through the media may be the best way to reach the citizenry and alleviate their concerns. If the objection to the Court is based on conflicting legal obligations, then the outreach may be better focused on the academic and legal communities to devise novel legal solutions to the apparent conflict.

Increased Registry outreach is hardly a panacea. Not all states parties would be receptive to this type of interaction with the Court. Moreover, increased outreach is not likely, by itself, to be sufficient to prevent withdrawal. Some of the other actions by the Court and actions by other international organizations and states discussed in the other submissions on this question should be applied in addition to outreach.

The Registry’s resources are limited and the increased outreach advocated here would surely require additional funds from the Assembly of States Parties. Finding staff with the requisite expertise in the many varied societies and power structures covered by the Court’s jurisdiction would be an expensive proposition, as would any statewide lobbying effort on behalf of the Court. There may also be a concern about the Registry behaving too politically in advocating for the Court and potentially interfering with internal decisions that should be left to states parties.9

As part of a strategy to prevent more withdrawals from the Rome Statute, the Registry should increase their outreach operations targeted at States at risk for withdrawal. The Registry should screen those States for government susceptibility to pressure from civil society and tailor their outreach strategy based on the local conditions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Assembly of State Parties, Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12, ¶ 12 (Sep. 29, 2006), available online. ↩

2. 2.

   Id. at ¶ 13. ↩

3. 3.

   International Criminal Court, The Registry, Public Information and Outreach: Engaging with Communities, Advance Copy (Nov. 17, 2014), available online. ↩

4. 4.

   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. ↩

5. 5.

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

6. 6.

   Security and Defense Cooperation Agreement Between the United States and the Islamic Republic of Afghanistan, art. 13, ¶ 5, at p. 19 (Sep. 30, 2014), available online, archived ↩

7. 7.

   Burundi moves to quit the International Criminal Court, Al Jazeera, Oct. 12, 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. ↩

8. 8.

   Michael Coppedge, John Gerring et al., Conceptualizing and Measuring Democracy: A New Approach, 9 Persp. on Pol. 248, 255-256 (Jun. 3, 2011), available online, archived. ↩

9. 9.

   The primary goal of this type of outreach would be to advocate for the value of the Court and the value of remaining a signatory to the Rome Statute. This type of behavior may not even be characterized as political, but simply as advocacy for the Court’s continued existence. ↩

Academics have argued that this will perhaps lead to the “fundamental weakening”5 of the court, particularly because of the country’s powerful stance in the region. The President of the Assembly of State Parties (ASP) to the Rome Statute, Mr. Sidiki Kaba described South Africa’s withdrawal as a “disturbing signal” and voiced serious concerns on the matter. He stated that “[withdrawal] would open the way to other African States withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crimes of aggression.”6 This interpretation is certainly plausible, particularly when looking at the larger context of other AU states having threatened to leave over the past years.

In light of these events the ICC now has the unique opportunity to reconcile ties with the African Union and perhaps urge South Africa (SA) to reconsider its position before their official withdrawal in 2017. Although SA’s reason for withdrawal has yet to be released publicly, a statement from the Minister of Justice7 articulated that the government would rather “give effect to the rule of customary international law, which recognizes the diplomatic immunity of heads of state”—Arguably referring to Sudan’s President Omar al-Bashir. Dapo Akande argues that had SA acted in accordance with the Rome Statute, and turned over al-Bashir, they would not have been in violation of their customary law obligations.8

In other words, this situation could altogether have been avoided. If correct negotiations take place in the upcoming ASP in November, SA’s withdrawal may be altered, however this again is unlikely, given the AU’s reluctance to accept al-Bashir’s guilt. However SA’s withdrawal from the Rome Statute is perhaps a retrogressive step with dire consequences, both for their own criminal justice system, and as champion of human rights within the AU.9 If South Africa does follow through with its withdrawal only time will show the setbacks it is likely to face, if bad, this alone can be a strong determinant for other states not following suit.

The court can perhaps dissuade other member states from withdrawing by focusing its efforts in places such as Afghanistan, Columbia and Syria, although all efforts in the past have been merely observatory and unsuccessful. In recent weeks several initiatives have been taken to encourage states to cooperate with the ICC, for instance the African Union has urged states to ‘help’ the court10 as well as the foreign minister of Botswana urging states to work towards reforming the court, as opposed to leaving it.11 In sustenance to this, the Advocacy Director for Amnesty International in Africa urged other African states to follow the lead of Botswana “rather than joining the drastic march away from justice.”12 Similarly, Human Rights Watch urged other African members to distance themselves from Burundi’s withdrawal and affirm their support for the victims, with African director stating that the country “has sunk to a new low by attempting to deny victims justice before the ICC.”13 This goes to show that the court is still looked upon as a great administer of justice within some nations and withdrawing from it is a loss for the court, the wider international community, and the victims of grave and inhumane crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Laura Barnett, The International Criminal Court: History And Role, Lib. of Parliament (Nov. 4, 2008), available online. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩

3. 3.

   Id. at Art. 27(1). ↩

4. 4.

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

5. 5.

   Id. ↩

6. 6.

   Press Release, International Criminal Court, President of the Assembly regrets withdrawal of any State Party from the Rome Statute and reaffirms the Court’s fight against impunity (Oct. 22, 2016), available online. ↩

7. 7.

   SA formally withdrawing from ICC, SA News, Oct 21, 2016, available online. ↩

8. 8.

   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. ↩

9. 9.

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

10. 10.

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

11. 11.

    Id. ↩

12. 12.

    Amnesty International, Gambia: Withdrawal from ICC a drastic blow to countless victims globally (Oct. 26, 2016), available online. ↩

13. 13.

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

If these African states withdraw because they oppose the way the ICC works and because of what they perceive it to stand for, namely an extension of Western domination they are very welcome to do so, although one could legitimately ask did they so eagerly chose to join it almost two decades ago, Indeed, the other ICC parties must insist that they withdraw at the earliest opportunity and not postpone it. After all, nobody wants to have dissatisfied members in an international institution, especially one which deals with prosecuting and trying individuals alleged to have committed all kinds of heinous crimes. What perhaps these states did not understand what was expected of them when they ratified the Rome Statute. When the ICC demands, for example, that they execute arrest warrants, they do not have a discretion whether to execute them or not. They are under a clear obligation to do so and it is then up to the arrested persons (whether their own nationals or not) to challenge the validity of the warrants. The Rome Statute does include an array of checks and so far the ICC seems to have employed them.

Thus, the question ought to be asked whether these African parties want to leave not because they are unhappy with the ICC but because they have realized that there are not able to carry out their responsibilities and commitments which flow from partaking in a multilateral criminal court. The fallacy that somehow states may participate in international institutions combatting impunity and striving to afford justice to victims, enjoy the benefits of membership, have the moral upper ground exactly because they participate and castigate those states which do not but at the same time have a carte blanche whether to comply with their duties or not cannot be sustained. This is unacceptable behaviour. The Assembly of States Parties has for very long tolerated those ICC parties (not only belonging to the African group) which have disobeyed the binding provisions of the Rome Statute. The decisions it adopts reminding parties of their obligation to cooperate with the ICC are clearly inadequate given the rebellion (if this word could be used) of certain African parties. The same is true for the UN Security Council as regards the situations it has referred to the ICC, namely Darfur and Libya. If one reads the regular reports that the ICC Prosecutor submits to the UNSC it becomes obvious that she is mesmerized by its total inaction.

But the purported withdrawals might not only have to do with the antipathy between the African Union (AU) and the ICC and the former’s direct or indirect attempts to rally those of its Member States, which are also ICC parties, against the ICC. It is instructive to recall that, despite the myriad problems and scourges affecting Africa, the AU Assembly has held only few extraordinary summit sessions to discuss them and to find solutions but it has dedicated a whole summit to deliberate Africa’s stance towards the ICC! Which might the other reasons for withdrawal be? The example of Namibian is telling. Given the aforementioned behaviour of its President, it came as no surprise that in November 2015 the government approved a recommendation by the country’s ruling party to withdraw from the ICC. However, when the International Relations and Cooperation Minister explained the reasons for the purported withdrawal the emphasis was no longer on its antipathy with the ICC. On the contrary, he suggested that Namibia no longer needed its services: it joined after Independence (Namibia signed the Rome Statute in October 1998 and became one of the original ICC parties when it commenced operating in 2002) because its domestic judicial institutions were weak at the time but this was no longer the case. In effect he was saying that Namibian courts are able and willing to prosecute war crimes, crimes against humanity, etc. and, therefore, the ICC is superfluous.

This attitude is in line with the role that the ICC plays, which, according to Article 1 of the Rome Statute, is to be complementary to national criminal jurisdictions. But if for the sake of argument Namibia withdraws (this argument also applies to other African ICC parties) and at some future point its domestic criminal jurisdiction proves unable to handle complex cases, how will the victims of crimes find justice and, more generally, how will impunity, a scourge particular to Africa, be combated? The AU still does not have a court of justice because, even though the Protocol establishing the African Court of Justice (the judicial organ envisaged in Articles 5 and 18 of the AU Constitutive Act) entered into force in February 2009, Member States have chosen to ignore it and have never proceeded with its operationalisation. On the contrary, they embarked on a fruitless attempt to merge it with the African Court of Human and Peoples’ Rights and then they have shunned the so-called African Court of Justice and Human Rights. And then, if this were not enough, in the summer of 2014 they adopted the Malabo Protocol to set up a further Section on International Criminal Law to the merged court in an attempt to show that they are capable of having their own international criminal justice mechanism making, by necessary implication, the ICC redundant. According to the table of ratifications of the Malabo Protocol maintained in the AU website, only nine states have signed it and none has ratified it.

This is a fine mess. But also a dangerous mess because those accused not only have avoided prosecution but also have been allowed to portray themselves as African heroes almost of the same stature with those who fought the anti-colonialism and anti-apartheid struggles. Conveniently the AU has not addressed the plight of the families of the hundreds of thousands who have perished at the whim of a handful of African leaders and their entourage. On the whole, these people do not have access to the African Court of Human and Peoples’ Rights, which, it must be noted, is not a criminal justice court. It might be the case that this Court could be given the opportunity to deal with war crimes, crimes against humanity, etc. but this is not its primary mandate. It does not have a Prosecutor who could initiate investigations either on his/her own initiative or when a situation has been referred by a contracting party to him/her. And of course the defendants before this Court are not individuals but only contracting states.

In conclusion, by now the project of international criminal justice has been most firmly embedded in the global community of nations. The withdrawals of a small number of African ICC parties (provided of course that they will actually take place) cannot and should not be allowed to derail it. African ICC parties can of course withdraw if they no longer have any use of its services or if they truly believe that it is an irrelevant institution. But as long as they fail to fight impunity effectively and ensure that the rights of the victims of atrocious crimes are protected, the ICC, despite its shortcomings, will remain the most appropriate institution. Let African states show to the world that they are able to sustain an international criminal justice system that is better than the ICC.