The Withdrawal Question — Comments

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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

Alternative Reasons for Gambia’s Withdrawal from the International Criminal Court

Although Gambia cited the International Criminal Court’s bias against African countries as their reason for withdrawing from the Court, Gambia’s president, Yahya Jammeh, may have instead withdrawn the country from the Court based on a whim or in an attempt to avoid the Court starting an investigation into his alleged human rights violations.

I. Introduction

Within the span of a few weeks, Burundi, South Africa, and Gambia announced their intentions of withdrawing from the International Criminal Court (ICC).1 Although the ICC had been criticized for being biased against African countries in the past, international observers were surprised that Gambia intended to withdraw from the ICC because the ICC’s current prosecutor is Fatou Bensouda, a former Gambian justice minister.2 In announcing Gambia’s withdrawal, Gambian Information Minister Sheriff Bojang, stated:

There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted. [The withdrawal] is warranted by the fact that the ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.3

Thus, the first impression from Gambia’s withdrawal is that the country is leaving due to the Africa bias issue. However, there are two alternative explanations for Gambia’s withdrawal. First, Gambia’s withdrawal could have been based on a whim by President Yahya Jammeh. Second, Gambia’s withdrawal could be predicated on Jammeh’s fear that the ICC may open a future investigation into his alleged violation of human rights, especially as an upcoming presidential election in the country threatens further crackdown on political opposition groups.

II. Gambia’s Withdrawal was Based on a Whim by President Jammeh

On October 1, 2013, Gambia surprised the international community when it announced its withdrawal from the British Commonwealth.4 While the Commonwealth had recently been vocal in encouraging President Jammeh to improve his human rights record, there had been no question of it trying to expel Gambia or suspend its membership.5 The language used in Gambia’s Commonwealth withdrawal announcement mirrored the language it later used in its withdrawal from the ICC. For example, Gambia stated that it was withdrawing from the Commonwealth because it was a “neo-colonial institution.”6

Some sources stated that Gambia’s withdrawal from the Commonwealth was based on a whim by President Jammeh.7 Rather than having actual frustrations that the Commonwealth was a neo-colonial institution, Jammeh may have decided on a whim to withdraw his country from the Commonwealth as a way to retaliate after he was barracked by human rights activists when he stayed at a hotel in New York before the UN General Assembly meeting.8 Journalists covering the announcement wrote that the withdrawal largely kept with Mr. Jammeh’s general style of governance by whim, which sees ministers reshuffled almost on a weekly basis and regularly jailed for crossing him.9 The parallels between this previous withdrawal and Gambia’s intention to withdraw from the ICC suggest that Gambia’s announcement to withdraw from the ICC could simply be a continuation of Jammeh’s governance by whim.

III. Gambia’s Withdrawal was Based on a Fear of Future Investigation into Jammeh’s Alleged Human Rights Violations

A. Jammeh’s History and Recent Escalation of Alleged Human Rights Violations

Over the past 22 years, President Jammeh and the Gambian security forces have allegedly used enforced disappearances, torture, intimidation, and arbitrary arrests to suppress dissent and preserve Jammeh’s grip on power.10 In response, on December 30, 2014, with the president conveniently out of the country, several gunmen attacked the presidential house, hoping to overwhelm the presidential guard with the rifles and other military equipment that they had smuggled into the country.11 One gunmen reportedly believed that members of the Gambian military, fed up with Jammeh’s 20-year autocratic rule since coming to power in a bloodless coup in 1994, would support their cause.12 They did not, and the plotters were outgunned and outmanned, taking heavy casualties—including several deaths—before abandoning the attempt.13 Dozens of soldiers and civilians were arrested and tortured following the foiled coup bid.14

Shaken and incensed by the failed coup, Jammeh tightened his iron fist. With a presidential election upcoming in December 2016, Jammeh imprisoned and tortured political opposition groups. Jammeh repeatedly threatened opposition parties. “Let me warn those evil vermin called opposition,” he said in May.15 “If you want to destabilize this country, I will bury you nine-feet deep.”16 When a prominent political opposition activist Solo Sandeng led a rare public protest calling for electoral reform, he was arrested by Gambian police, taken to the headquarters of the National Intelligence Agency (NIA), and brutally beaten to death.17 Many protesters arrested with Sandeng were also tortured at the NIA; several were beaten and doused in water while being forced to lie on a table.18 Gambian authorities have in 2016 arrested more than 90 opposition activists. Gambian courts have convicted 30 opposition members and sentenced them to three-year prison terms.19 The presidential election indicates that the political crackdown on dissidents will escalate further.

B. The Possibility of an Investigation into these Abuses by the ICC

The Prosecutor may start an investigation of a situation referred to it when there is a reasonable basis to believe that crimes have been committed or are about to be committed.20 In addition to the situations referred by states parties and by the Security Council, the Prosecutor may also receive from other sources, such as individuals or non-governmental organizations, information relating to crimes within the jurisdiction of the Court.21 The Prosecutor will conduct a preliminary examination of the information in each case.22 Then, if the Prosecutor decides that there is evidence supporting the fact of an inquiry, she will ask the Pre-Trial Chamber to authorize the investigation.23

The ICC has not announced any preliminary examination or investigation into Jammeh’s alleged prior human rights violation. The escalation of human rights violations, first with the crackdown after the coup and now with the crackdown on political opponents during the president election, may motivate the ICC to take a closer look at Gambia. This motivation coincides with the arrival of a new valuable source of information that could serve as a basis for an authorized investigation.

In September 2016, Gambian Interior Minister Ousman Sonko was fired by Jammeh and fled to Sweden for political asylum.24 Sonko served as Jammeh’s Interior Minister since 2006.25 He was complicit in the murder of the late respected Gambian journalist Deyda Hydara, and a host of other state organized crimes.26 Sonko is also privy to Jammeh’s drug trafficking, money laundering, Jammeh’s affiliation with the Hezbollah financiers in Banjul, and the destabilization of the Casamance region through the arming of the MFDC rebels.27 Sonko is an intelligence goldmine for the West. If quizzed, Sonko could reveal certain information that would warrant the ICC to take Gambia’s case seriously.

The arrival of Sonko in Europe and the escalation of human rights violations in Gambia would increase the possibility of the ICC opening an investigation into Gambia. The escalation of human rights violation due to the upcoming presidential election would establish a reasonable belief that crimes under the ICC’s jurisdiction are about to be committed. Sonko then could provide the individual source of information relating to those crimes which would allow the Prosecutor to then eventually ask the Pre-Trial Chambers to authorize an investigation into Gambia. Potentially afraid of this possibility, Jammeh may have announced Gambia’s withdrawal from the ICC in an attempt to save himself from future investigation and prosecution.

IV. Conclusion

Gambia cited neo-colonialism concerns as the reason behind the country’s withdrawal from the ICC. However, the similarities between Gambia’s recent withdrawal from the Commonwealth and the ICC suggests that Gambia’s exit from the ICC may have been motivated by President Jammeh’s governance by whim. Additionally, Jammeh has faced increased scrutiny domestically after ruling the country with an iron fist for 22 years. Jammeh has escalated a brutal crackdown on dissidents after a failed coup at the beginning of 2015 and with an upcoming president election looming in the background. At the same time, Ousman Sonko, who served as Gambia’s Interior Minister since 2006 and reportedly has important intelligence involving Jammeh’s human rights violations, fled to Sweden. Thus, the ICC has recently obtained the motivation and potential means for opening an investigation into Jammeh’s past human rights violations. The increased potential of an ICC investigation may have motivated Jammeh to have Gambia withdraw from the ICC.

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

  1. 1.

    See Gambia announces intention to withdraw from International Criminal Court, PressTV, Oct. 26, 2016, available online.

  2. 2.

    See Gambia withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online.

  3. 3.

    Id.

  4. 4.

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

  5. 5.

    Id.

  6. 6.

    Id.

  7. 7.

    See David Blair, Gambia to leave the Commonwealth, The Telegraph, Oct. 2, 2013, available online.

  8. 8.

    See Freeman, supra note 4.

  9. 9.

    Id.

  10. 10.

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

  11. 11.

    Simon Allison, ‘The Gambia coup didn’t just fail, it backfired’, Daily Maverick, Jan. 7, 2015, available online.

  12. 12.

    Id.

  13. 13.

    Id.

  14. 14.

    See AFP, Dozens arrested after failed coup in Gambia, Daily Nation (Jan. 2, 2015), available online.

  15. 15.

    See Wormington, supra note 10.

  16. 16.

    Id.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    Id.

  20. 20.

    See International Criminal Court, General Organization, Office of the Prosecutor (Jun. 6, 2007), available online.

  21. 21.

    Id.

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    See AFP, Fired Gambian minister flees to Sweden, The Local, Sep. 23, 2016, available online.

  25. 25.

    Id.

  26. 26.

    See Pa Nderry M’Bai, The Great Escape: How Gambia’s Sacked Interior Minister Ousman Sonko Made It To Senegal; Then Sweden?, Freedom Newspaper, Sep. 22, 2016, available online.

  27. 27.

    Id.

Regaining South Africa’s Support in the ICC by Resolving the Head of State Immunity Issue

In order to prevent a mass exodus of African states parties resulting in the dissolution of the Court, the ICC should take swift action to regain South Africa’s support in the ICC by resolving the head of state immunity issue.

Introduction

On October 21, 2016, South Africa announced it would be withdrawing from the ICC, citing an irreconcilable conflict between its obligation to arrest under the Rome Statute and its duty to honor head of state immunity under customary international law.1 While the recent withdrawal announcements of Burundi and Gambia can be understood as opportunistic moves to avoid criminal responsibility, South Africa’s departure raises far more serious concerns for the future existence of the Court. Specifically, South Africa’s withdrawal is likely to trigger a mass exodus of African states from the Rome Statute, thereby seriously undermining the ICC’s legitimacy and credibility and sentencing the Court to an almost certain end.

In order to abate the escalating crisis, it is crucial that South Africa’s faith in the Court is renewed. This article argues that the most effective way to quickly restore South Africa’s support for the Court is for the Court to resolve the discrepancy between Article 27 and Article 98 of the Rome Statute,2 effectively allowing states parties to the Rome Statute to honor head of state immunity while still complying with the Statute. Besides reviving South Africa’s endorsement of the Rome Statute, this action would foreseeably renew other African countries’ faith in the Court, namely countries like Kenya and Sudan who have been subjected to the head of state immunity dilemma. Lastly, it is important to mention that this proposal is not intended to address the ongoing problems the Court continues to have with legitimacy, but rather, it is meant to suggest a prompt course of action to stave off the impending dissolution of the Court.

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 (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

I concur.

Moving Into the Investigation Phase of the Burundi Situation

The Burundi government’s withdrawal from the International Criminal Court (ICC) does not mean their government can avoid responsibility for their alleged crimes. To prevent the government from escaping justice, the ICC needs to launch a formal investigation into the Burundi government. There has been hundreds of deaths from violent street protests and political killings in Burundi.1 The Burundi government “has been blamed for many of the deaths, as well as rapes and torture.”2 In April 2016, the ICC announced that a preliminary examination has been launched into the Burundi government for these deaths and disappearances.3 In October 2016, the Burundi government began the withdrawal process from the ICC.4

Launching a formal investigation will allow the ICC to effectively retain jurisdiction over the Burundi government over the alleged crimes.5 Launching an investigation explicitly fulfills the Rome Statute, Article 127. That Article states a “[State’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations…which were commenced prior to the date on which the withdrawal became effective.”6 On the other hand, there is more uncertainty whether a preliminary examination will allow the ICC to retain jurisdiction over the alleged crimes.7 In fact, “Burundi’s signal of an intent to withdraw may actually act ‘as an incentive for the ICC to speed up its decision and open an official investigation in the violence in Burundi[.]’”8

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.

Outreach Campaign and More Aggressive Prosecution Outside of Africa

Summary

Prevention for loss of credibility of the ICC should be addressed by formulating a mind changing campaign and also by initiating more prosecutions in other regions of the world.

Argument

The International Criminal Court is meant to uphold justice in the signatory countries. It covers serious cases such as genocide and crimes against humanity. In the past few weeks, three African countries among them Burundi, South Africa, and Gambia have announced their decision to leave the Court. South Africa opted for withdrawal after being on the receiving end of global condemnation after allowing President Al-Bashir of Sudan to leave the country even though he had a warrant for arrest. Burundi opted to do so after government officials suggested that the Court was a tool for western nations to target Africans. Gambia, on the other hand, stated that the Court neglected to prosecute European countries after the death of immigrants going to the continent and Tony Blair for his role in the Iraq war. To prevent massive withdrawal from the ICC, the Court should invest in campaigns and investigate cases properly so as to improve its credibility since withdrawal will lead to the lack of political accountability among nations of the world.

Recently, there has been a campaign by the African Union to encourage states parties to pull out of the Court as they feel they are being targeted. It is speculated that the Court only seeks to go after African presidents and other prominent figures while it steers clear of other continents and powerful countries.1 Only recently have investigations in Georgia and Afghanistan been opened showing the monopoly. The Court must try and show that that is not the case and persuade the withdrawing countries that it is in their best interest to stay.

The ICC should launch a campaign, meant to change the minds of those leaders too. The mass exit is caused by the countries being disillusioned and feeling as though the Court is a political tool by the West rather than a means to promote international justice. With the withdrawals, the Court will lose credibility amongst the remaining countries, which will result in them opting out and the eventual disbandment of the Court altogether.2 Another move that it can take is being serious in the cases it has and invest enough resources in the investigations, which will provide evidence or otherwise of the accused. By so doing, the Court will be more severe and determined in its quest for justice, which will go a long way in convincing other countries to stay and the ones opting to leave to reconsider their decision.

Withdrawal from the Court will eventually have some consequences in the long run for the three countries that are opting for it. Firstly, the government officials will have no one to answer to for their wrongdoings. Given the volatile nature of the developing countries, especially during the election periods, it will cause impunity amongst the leaders who know they will not be held accountable.3 The justice systems in these countries are corrupt to some degree; hence, the victims of such atrocities will not face justice. For a country such as Burundi, which was recently involved in considerable violence after the attempted coup,4 there will be further fears of future crimes against humanity. South Africa will also be seen as non-cooperative with the international community as it opted for this route after failing to arrest the Sudanese President. Another consequence is that the international community will be very hesitant to help in such scenarios, as it will seem they put themselves in the situation. The Court being an international body will not have any mandate to lend a hand should such a case become a reality.

Overall, it must be said that the ICC is a vital body in the international community as it seeks to uphold justice globally. It may have some critiques, and rightly so, about how it conducts its cases and who it goes after, but it is a section where it can improve on while clarifying its decisions. The need for withdrawing from the ICC by the three African countries is misguided and should be a cause for concern for the rest of the world in regards to the future stability of these countries. The Court should invest in campaigns and proper investigations so as to improve its credibility.

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

  1. 1.

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

  2. 2.

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

  3. 3.

    Press Release, FIDH, Reject Impunity: Don’t Withdraw from the ICC (Oct. 27, 2016), available online.

  4. 4.

    Burundi: Failed Coup, 52 Africa Research Bulletin 5 (2015), abstract available online.

I agree with you and would like to add the following:
It is true that the ICC needs some reforms so that member states of the Rome statue can begin to see each other as equal partners and feel responsible for the running of the ICC. The ICC contains seeds of its own destruction but they are curable, for instance articles 13(b) and 16 of the (Rome) ICC statue gives special powers to the Security Council to refer or defer an ICC prosecution. Like where China and Russia vetoed the security resolution to refer the Syrian war to ICC for crimes against humanity. If we try to analogize this in the light of the rule of law at domestic jurisdiction level, of several states; one of the very core foundations of judicial justice is the independence of the judiciary. Can we really say that the ICC is independent, the answer is definitely no!
The ICC needs several reforms, to start with it needs to address the following matters:
• The independence of the Court from the influence of the 5 permanent members of the security council
• The involvement of the African parties on the choice of cases that should be prosecuted by the ICC
• Free from political interference
• Only state parties should have a voice on the ICC matters nonmembers like the USA should stay away
I hope this is fixed as soon as possible because the exodus of African states from the ICC mainly affects the ordinary African citizens. They will be the big losers should we fail to find hold things together.

Absolutely, Chani. The ICC is for sovereign states, tribes and individuals with the task of making USA and Bismarck's Germany into sovereignties. International Crime Syndicates in control of the US government will not sign the 2, 3, 4 Geneva paragraphs including the Rome Statute to keep ICC investigators out of the country and away from ongoing crimes against humanity worldwide hosted there. US politicians had mass input in the construction of the ICC (www.amicc.org) literally constructing it to protect US criminal activity. Back tracking, Criminals in US government claim to have invented the UN in 1942, when we find in a recent discovery the original charter and commission - the structure was made in 1848 by D. Henri Druey (http://de.wikipedia.org/wiki/Henri_Druey) to parallel the Swiss Department of Justice and Police.

The discovery includes the opportunity for several nice big busts by the ICC Prosecutors in United States under the Principles of Complementarity using remote campaign software. I personally did the forensic accounting on a single crime against a French settlement that bears $87 trillion in immediate recovered revenue and wealth. More important than economic recovery, which is the of most crimes against humanity, is reestablishing rights to land and plants from pioneering which in turn should end land-plan genocides, population moving, ethnic cleansing around the world in a chain reaction.

Americans and their government agencies are under siege by the exact same blood descending from the Privy Council 1588 - present. Obvious to all rational thinkers, the US part of the Security Council having positioned themselves in 1942
and ever present in all events has not done one thing to stop one crime against mankind ever. Ever.

I just submitted a comment on the US propagated allegations against the President of Gambia along these same lines. I hope my article gets posted and I hope you get to read it.

The States Parties Must Provide Legal Staff and Financial Aid to Certain Countries

Background

It follows from the Rome Statute that the International Criminal Court’s (the ICC) jurisdiction over atrocities committed in states, which are parties to the Rome Statute, applies when, inter alia, the local, national judicial system in a signatory state is unable or unwilling to bring perpetrators to justice.

Summary of Proposal

The States Parties to the Rome Statute—especially countries with long lasting and well-developed legal systems, competent and independent national courts, an experienced and well-educated legal profession and low corruption (in the following “High Resource Countries”)—should provide certain countries with legal expertise and resources. This initiative should be combined with financial aid as well.

Reasoning

A large number of States Parties from third world countries are skeptical towards the ICC. In the following, these are called “High Risk Countries” due to the high risk of such countries withdrawing from the Rome Statute. Such High Risk Countries are inclined to withdraw from the ICC because they view the ICC as some kind of Western imperialistic institution, which is biased towards targeting and humiliating certain countries and/or parts of the world, especially High Risk Countries.

The High Risk Countries’ willingness (or lack of such) to prosecute their own citizens for atrocities is a separate question, which this paper will not address. There is no reason to discuss High Risk Countries’ willingness or obligation to prosecute atrocities themselves if they do not even have the legal expertise, staff or resources to do so. Hence, my suggestion focuses on enabling High Risk Countries to prosecute atrocities and not the subsequent question about the High Risk Countries’ willingness to do so.

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.

I agree with your basic conclusion that there must be an integrated frame work however the primary complaint from high risk countries is that other countries which by all right should be considered high risk are not due to geo-political power structures.

For example there is ample evidence for prosecution of American leadership regarding the invasion of Iraq and Afghanistan as illegal wars and violations of basic sovereignty. This conclusion is supported by the recent Chilcot report. However there is a general recognition that the ICC is powerless to pursue these matters and so we are left with a court that can persecute some offenders and must acquiesce to others. Under these conditions it is only reasonable for African offenders to withdraw from the court as they will face prosecution for crimes that are fundamentally smaller in scale than other state actors. If the court cannot implement law equitably than it hardly even justifies calling itself a court.

Exercising Restraint: ICC Cooperation with the Security Council and Regional Courts

While the International Criminal Court (ICC) can be construed as a unifying institution to investigate and prosecute crimes at an international level, many countries believe that the ICC is inherently biased in favor of Western countries, leading to possible defection from the ICC. To minimize defection and perceived bias, the ICC can bind its jurisdiction specifically to referrals from the United Nations Security Council (UNSC). Moreover, rather than moving forward with more investigations, the ICC could instead focus on coordinating with regional courts to address crimes.

To dispel notions that the ICC is biased against certain countries, the Court can limit its investigations to referrals by the UNSC. Since the ICC’s inception in 2002, many African leaders now distrust the Court due to a perceived bias against African countries. Indeed, every one of thirty-two publicly issued indictments are of African individuals.1 Moreover, African leaders note that while the ICC has indicted numerous African individuals, the Court has not been involved with recent atrocities outside of Africa, such as war crimes during the Syrian Civil War, which began in 2011.2 Rather than focusing on indictments or opening more investigations, the Court can exercise restraint and rely instead on UNSC referrals. The UNSC requires a level of precision and consideration not present in a state party referral or the Prosecutor’s proprio motu power.3 Indeed, the UNSC must first determine that a “threat to the peace” exists under article 39 of the Charter of the United Nations and only then can it proceed to take action under either article 41 or 42, which governs whether to use force.4 Given the UNSC’s referral to the ICC and implicit agreement that an international response is required in a situation, the UNSC would likely be more willing to cooperate with the ICC to impose sanctions against the offending state party.5 By exercising restraint and deferring to the UNSC’s referrals, the ICC would be able to counter states’ beliefs that the Court is simply an extension of Western imperialism.

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.

Hybrid Criminal Courts as a Solution to the Recent Withdraw Problem of the ICC

Summary

The recent withdrawal of African governments from the ICC is likely to be seen as an action that will negatively impact the Court. The consequence of this move could be a domino effect, leading other African and non-African state parties to withdraw from the Court as well. This reaction could lead to the ICC being irrelevant, since all the investigations made so far have been related to alleged crimes made in different regimes in Africa.1

On the other hand, others may claim that this could be a “wake up call” to the Court, leading it to make long needed changes to its way of operating. Such change must be fundamental, to prevent other state parties from withdrawing and maybe even push the ones that withdraw to reconsider their decision. From this perspective, it can be claimed that this recent withdrawing was a positive move.

In this short paper, I will present a possible fundamental change to the nature of the Court. I will start by explaining the reasoning behind the recent withdrawal, using quotes of the state parties’ leaders. Based on those reasons I will lay out the basic features of the solution needed. I will present the Hybrid court model and explain why changing the nature of the ICC from a fully International entity to a Hybrid might solve the withdrawal problem the Court is facing. Finally, I will address the potential flaws of this model and the likelihood of its implementation.

Argument

This paper argues that one potential solution to the recent withdraw problem can be to turn the ICC into a body that oversees, creates, trains and funds several hybrid courts. I will argue that by doing so, the Court will gain back the trust of those states, will strengthen them and will prevent a domino effect of other states parties withdrawing from it.

Before presenting the change, it’s necessary to understand the reasoning for the withdrawal. The statements released by the withdrawing governments leaders, present several different justifications for their action. It seems like the main one was the claim of an inappropriate focus of the Court on Africa. For instant, Gaston Sindimwo, the First Vice President of Burundi claimed that:

Burundi has made a good decision to protest against the injustice of the colonial powers towards the Burundian people.2

The following country to withdraw was Gambia, whose Information Minister Sheriff Bojang said that:

The Court had been used for the persecution of Africans and especially their leaders…while ignoring crimes committed by the West…the ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.3

Based on these statements, it seems that the needed solution is one that will enable African countries not to feel unjustly haunted by the “post-colonial” forces, and will still allow investigation of serious crimes. To overcome critics, the Court might need to be more sensitive to local issues and to leave some sense of independence to the state parties. Such a solution might be a change of the designation and jurisdiction of the Court.

Currently, the ICC has an international legal personality,4 and is responsible for opening an investigation (through its Prosecutor),5 performing it and conducting a trial proceedings.6 Its decisions are based on the Rome Statute, the ICC’s foundational and governing document. Because of its full international nature, the Court is perceived to be insensitive to states and state’s independence, as mentioned above. Therefore, I would like to propose turning the Court into a body that oversees creating, training and funding (through its states parties) Hybrids courts.

The Hybrid court model (also referred to as mixed court), is hard to define, there is still a debate over its basic elements and its classification.7 As to its main elements and characteristics usually those courts have an ad hoc nature, which means that unlike the ICC they usually address one situation.8 Those kinds of courts are implementing both local and international law and their staff consists of both national and international members.9 As to their classification, it’s not clear yet whether a hybrid court is considered a national, international or different and new kind of a body.10

Turning the ICC into a body that oversees several hybrid courts may create the perfect balance between an effective court and one which gives its states parties the right amount of independence. This will leave the power to open an investigation to the ICC, but still allow the state investigated to take part in the legal process. by implementing both local and international law. In doing this the ICC will send a message of respect to the state party’s traditions and local perceptions of the law. The same message will be sent through the appointing of local judges alongside international ones.

In addition, while training the local justice staff, the ICC will in fact improve the local justice system and will create new tools for it to progress. Those tools can influence the re-design of some of those states, and might even prevent future harm and crimes. For this solution to be effective, the ICC and the international community should provide financial resources and training to the new tribunals and its members. At the same time, the ICC might need to consider looking into new investigations in other parts of the world to regain the trust of the African regimes.

This solution is not a new one, and has been previously discussed within the context of the Complementarity principle and the cooperation with the Court.11 For example, a similar modal was found to be relatively successful in the case of the Special Court for Sierra Leone.

This model is not free from potential flaws. It requires the full support and participation of the subject state, a requirement that might not exist in every case. Moreover, it might be costly to build new tribunals and to train local and international staff for every investigation. The cost issue could be even more problematic if other states parties and the International community will refuse to fund such bodies. Above all, the main issue regarding this fundamental change is the likelihood of its implementation. I’m aware of the fact that this suggestion is a radical one, that practically rebuilds the Court’s structure. Hence, the chances of these changes occurring are very low and this discussion probably will remain an “academic” one, instead of practical. Nevertheless, partial implementation of this modal might also bring a change, even if it’s not the perfect one.

With that said, the main reason for choosing this model is the lack of trust mentioned above and the need to overcome and fix it so the ICC does not lose its effectiveness. I believe that one way of doing so is by showing the African states that the Court does accept their legal systems, that it does not “look down” on them in a “colonial” way and that they can be trusted. This fundamental change might be the one that will make this recent withdrawal a positive move for the ICC.

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

  1. 1.

    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.

  2. 2.

    Lorraine Josiane Manishatse, President promulgates Burundi withdrawal from ICC, IWACU English News, Oct. 19, 2016, available online.

  3. 3.

    Gambia withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online.

  4. 4.

    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 4(1).

  5. 5.

    Id. at Article 15.

  6. 6.

    Id. at Article 18.

  7. 7.

    Neha Jain, Conceptualising Internationalisation in Hybrid Criminal Courts, 12 SYBIL 81 (2008), abstract available online.

  8. 8.

    Id. at 2.

  9. 9.

    Id.

  10. 10.

    Id. at 7.

  11. 11.

    Makokha Ronald Walala, A Critical Assessment of the International Criminal Court’s Performance (2002-2008) (Apr. 22, 2009), abstract available online.

The ICC Should Not Take Political Action

Summary

Because the ICC should make every effort to be an apolitical organization, efforts to deter withdrawal and nurture recommitment from states parties should be taken by the remaining states parties and other members of the international community rather than the Court.

Argument

In recent weeks, several countries have chosen to withdraw from the International Criminal Court (ICC).1 Moreover, more withdrawals may be on the horizon as several African countries have voiced their discontent with the ICC.2 Reasons for withdrawal have ranged from conflicts between the Rome Statute and the laws of the state party to outright accusations of racism by the court.3 Regardless of motivation, one thing is clear; in order for the ICC to maintain its current standing as the judicial representative for international justice and human rights, action must be taken to deter further withdrawals and to nurture recommitment from dissenting states parties.

While efforts to establish stability must be taken, the process must be cabined by the idea that the ICC should maintain its commitment to operating as an apolitical body whenever possible. Because the motivations for the withdrawals and threats of withdrawals have been politically motivated, and it will certainly take political action to address the situation, the international community (composed of states parties, international humanitarian organizations, and the like) should take it upon themselves to dissuade dissension through diplomacy and political action rather than the ICC itself reacting. The ICC, however, is not to remain stagnant. It must take into consideration the validity of the complaints made by the dissenting states parties and conduct itself in a manner that would not cause a misperception of impropriety.

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).

I Support the Withdrawal.

The logic that underpins the African states decision to withdraw from the ICC is not that the ICC is a racist institution. The Logic addresses the basic problem that the ICC is a impotent outside of the context of third world states. It is not that the ICC only wants to prosecute Africans, it is that the ICC can only prosecute Africans. The ICC has no power to prosecute living European war criminals or American war criminals. The ICC has no power to prosecute living criminals responsible for the Massacre in 1964-65 Indonesia. The ICC has no power to prosecute Pakistani or Arab war criminals. The ICC only has the power to prosecute African criminals because every other criminal is protected by the global power structure in one way or another. Under these conditions African leaders are right to withdraw from the ICC as remaining will create a situation where it is continuously and repeatedly Africans on trial on the world's stage leading to a perception that it is only Africans committing crimes.

This comment is not a defense of African criminals but an explanation of why the ICC holds no value to them. If the ICC wishes to create a functioning International Court then the court must be able to also persecute Europeans with the equal vigor that they would persecute Africans. To begin this process, the court must first acknowledge that this problem of unequal jurisdiction exist, which it has so far failed to do. The court must abandon the straw man argument that Africans are levying false allegations of racism and acknowledge the fact that the courts power can only be exercised in a manner which would in fact appear racist, again, since the court only has the power to prosecute the relatively internationally powerless.

I think the jurisdiction of the court is and remains available. The thought a judiciary exists globally where non member states cannot use the jurisdiction of the icc goes against the intent the international body of courts exist. The icc is not an appeal function, yet has been used as one on their request for answer to their courts rulings, naturally this process nominated is sound and clearly impartial to the three law courts combining rules, furthermore the court is also in the case I am thinking about not ruling for any other member state. Therefore the three jurisdictions seeking to exist the agreement is merely jurisdiction they possess to use and does not deny their right to use icc in any event.

For the above reasons the withdrawal should not be a debate.

Nowhere under any code or statute of Rome law act allows to deny or specifically includes to deny the right of any state to exercise process on own motions that any other state member or not does possess. The prosecutors office can be excluded where local law is engaged by direct indictment.

The rights of the accused is best served locally. The direct indictment process specifically denies prosecutors are needed. The court is, is the translation of direct indictment.

Direct indictment to a prosecutor don't exist.

Even though prosecutors and law makers alike have taken approach they can intervene or have control etc. For want of jurisdiction the people possess has consequence.

A government minority whatever is not minority protected human. In fact many times governments moved around claiming is another states government and people replied hell no as an appeal law act.

The only one six continants all agree ain't equal is the fabricated they dreamed up seventh one that don't exist.

In fact they all came from east and west across oceans claiming are minorities to be protected.... while forgetting their customs hated or not. Their foriegnors wanting another to heel.

The continant or countries of North America is an insane asylum of land jail. For locals, and where ya are from.

What occured on North America is equal to Magna carte times where welsh and gal is and Anglo need Italian and didn't read, still don't read Italian.

Scotland had visitors from across Europe. We didn't change our name or education or language or way of life. You visitors accepted where you are truly Scotland to Scotland.

Know when Scotland learned to spell Scotland. After other did first in their noises.

Seeing six continants copy cat what outside Scotland did all equals. Was expected. Seeing a seventh exist from six continants minds was not scotlands plan or idea or fault or medical condition called magic or illusion or delusion etc.

From what I have noticed, African nations are seeing crimes against humanity being committed by Western countries, with little being done to show accountability. African nations believe they are being targeted, and by many accounts that's exactly what has happened. African nations appear easy to target. Western nations appear much harder, due to their legal systems still being intact.

One example is that of Australia. Asylum seekers and refugees are being tortured in detention centres, with crazy excuses such as 'people smugglers' and 'stopping the boats'. African nations see that Australian politicians are not being found accountable for these actions, yet African politicians are for their war crimes.

I am wondering if the ICC did investigate Australia - would African nations think twice about leaving the ICC? Would this be enough to show independence? As it is, the ICC is analysing Australia's situation already. They need to go that further step, and make a decision. Would this then stop African nations from leaving?

Perhaps the ICC should make their decision now, rather than leaving it until it's too late.

Diplomacy as a Response to ICC Withdrawals

Summary

The International Criminal Court (ICC) should deploy a strategy of radical diplomacy in response to the recent withdrawal from the court of South Africa, Burundi, and the Gambia, before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court.

Argument

South Africa, Burundi, and the Islamic Republic of the Gambia’s recent announcement of their intention to withdraw from the ICC has led to much speculation and uncertainty regarding the future of the court. Much of the concern centers around South Africa, with proponents of the court worrying that the nation’s status as a regional leader could serve as an example for African rulers who want to capitalize on the moment to elude international accountability for their own actions. This speculation has proved true in at least one instance, with Gambian President Yahya Jammeh’s announcement of withdrawal coming hot on the heels of South Africa’s announcement. Given these fears, it is imperative that the court take decisive action to mitigate the damage caused by these announcements and to prevent a possible domino effect. Some have proposed making sweeping changes to the structure of the court in response to popular criticisms. I disagree with an act first, ask questions later approach and argue that the court deploy radical diplomacy before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court. Thus, the court should utilize its own procedures, as well as the support of states parties and international allies to conduct talks with South Africa with the express goal of addressing legitimate concerns and finding possible solutions.1

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.

Sanctions as a Penalty for Withdrawing from the ICC

Summary

Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC.

Argument

In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the International Criminal Court. Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC. By doing this, the states parties of the ICC will send a strong message that atrocities will not be tolerated anywhere in the world, while also dissuading other countries from withdrawing from the ICC in the future.

The ICC is a U.N. body that can prosecute individuals who have committed war crimes, genocide and other crimes against humanity. Its jurisdiction covers only places where recognized governments are unwilling or unable to carry out judicial processes themselves.1 The leaders of both Burundi and Gambia are current targets of ICC actions and accused of perpetuating widespread human rights violations. South Africa’s government, in stark contrast to Burundi’s and Gambia’s, is a maturing multiparty democracy that generally upholds human rights.2 However, Pierre Hazan argues that the withdrawal of South Africa from the ICC, which is not being currently targeted by the ICC and therefore does not have “its back to the wall,” gives some kind of legitimacy to all other African States to pull out.3

It is widely argued that 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.4 However, Luis Moreno-Ocampo argues that this African bias discussion is merely covering up that there are currently African heads of states planning or committing massive atrocities to retain power; that the ICC is currently the only institution designed to be effective at preventing and punishing international crimes; and that the international legal order is going backwards.5

States parties of the ICC should impose targeted sanctions to the leaders of Burundi and Gambia. Withdrawing from the ICC during a current investigation, with the apparent intent to avoid future prosecution, cannot be tolerated. The ICC must continue their current investigations into these countries, regardless of any announced intent to withdraw. The ICC cannot be effective if a country’s leader can merely withdraw from the ICC, mid-investigation, with zero consequences. South Africa should not necessarily be immune to the possibility of sanctions, even though there are major differences to the situations in Burundi and Gambia. The loss of any area of jurisdiction by the ICC weakens its ability to stop atrocities from being committed in the future.

As one can imagine, the countries most likely to be in favor of sanctions are the same countries accused of perpetuating an ICC bias. However, established countries have long sanctioned developing countries for human rights violations. Without sanctions, leaders of countries are further incentivized to anticipatorily withdraw from the ICC in foresight of atrocities that they plan to commit or knowingly allow to happen. States parties of the ICC need to intervene and show that this conduct will not be tolerated.

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

  1. 1.

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

  2. 2.

    Id.

  3. 3.

    Pierre Hazan, Could quitting the ICC spell more violence in Africa?, Swiss Info, Oct. 27, 2016, available online.

  4. 4.

    Turning Its Back, supra note 1.

  5. 5.

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

Traditional Justice Mechanisms Can Satisfy Complementarity

Summary

The recent decision by the governments of South Africa, Brundi, and Gambia to leave the International Criminal Court (“ICC” or the “Court”) has created various reactions from the international community. One main reason that these countries’ notice to withdraw is significant is the fear that other African nations will soon follow their footsteps and leave the institution.1 If more states parties leave the ICC, the institution’s legitimacy will be severely damaged and the ICC’s future as an emerging system of international criminal justice will be seriously threatened. Therefore, it is imperative to understand the underlying reasons behind these countries’ decision to leave the Court in order to dissuade other states parties from withdrawing.

While determining the true motivation for these countries’ withdrawal might be difficult or even impossible given the political considerations involved in their decision, one thing is clear: the ICC’s disproportionate focus on Africa has provided the African nations with a justification, or perhaps an excuse, to target the ICC.2 Since its inception the Court has indicted 39 individuals, every single one of them African.3 As evidenced by some African nations’ intention to leave the ICC, this pattern of prosecutions has reduced the Court’s legitimacy. Gambia’s Information Minister, Sheriff Bojang, has called the ICC “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”4 Other African leaders have called the Court “an instrument of modern colonialism, noting that all of those convicted have been Africans.”5

To strengthen its legitimacy and dissuade other countries from withdrawing, the Court must eliminate any perception that it is yet another neo-colonial institution trying to impose western standards of justice on its non-western states parties. In this paper, I will argue that one way for the Court to accomplish this goal is to allow non-western approaches to justice to satisfy its complementarity provision. However, the question arises of whether the ICC’s recognition and acceptance of alternative forms of justice will be consistent with its mandate of holding perpetrators of gross human rights violation accountable through “investigation” and “prosecution.”6

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).

The ICC Should Investigate More Non-African Countries to Dissuade Other African Withdrawals

Summary

In order to dissuade additional African countries from withdrawing from the International Criminal Court, the Office of the Prosecutor should open more investigations in non-African countries, particularly Colombia, because this may counter the current geopolitical bias narrative that Burundi has used to justify its withdrawal.

Argument

The question of whether or not the International Criminal Court (ICC) is geopolitically biased has received significant attention following the recent announcement that three African countries—Burundi, South Africa, and Gambia—intend to withdraw from the ICC. For example, the Burundi government has denounced the ICC as a “Western tool” that targets and destabilizes African countries, thereby justifying its withdrawal.1 Although this argument is significantly undermined by the ICC’s current preliminary examination into acts of killing, imprisonment, and sexual violence in Burundi,2 there is definite cause for concern that other countries will also withdraw from the ICC. South Africa’s withdrawal is particularly devastating in this respect because it has supported the ICC since its inception.3 I argue that in order to dissuade additional countries from withdrawing, one course of action would be for the Office of the Prosecutor (OTP) to open more investigations in non-African countries.4 Additional investigations would dispel any concerns that the ICC has a geopolitical bias, which would boost the ICC’s legitimacy and thereby encourage African countries (and other countries that are perturbed by the potential of bias) to continue supporting the ICC.

Because the ICC has almost solely investigated, tried, and convicted African defendants, many scholars and government officials have criticized the ICC for being geopolitically biased.5 It is important to recognize, however, that external actors have largely dictated the ICC’s docket. Specifically, the OTP has only initiated one of the ICC’s nine African cases, whereas African governments have brought forward six cases, and the United Nations Security Council has referred two cases.6 Herein lies the value of the OTP taking existing preliminary examinations in non-African countries and transitioning them into full-fledged investigations. If the OTP begins one or two new investigations in non-African countries, then the ICC can point to this development as a counter to the geopolitical bias argument. This will in turn increase the ICC’s legitimacy in the eyes of countries that may be considering withdrawal.

The ICC has three existing preliminary examinations in Afghanistan, Iraq/United Kingdom, and Colombia that it could realistically turn into investigations.7 Afghanistan has been under preliminary investigation since 2007 for war crimes and crimes against humanity “committed in the context of the armed conflict between pro-Government forces and anti-Government forces.”8 Prosecutor Fatou Bensouda has indicated that an ICC investigation in Afghanistan will likely unfold in the coming months.9 This news comes on the heels of the three African countries’ announcement of withdrawal, so it is possible that the Prosecutor is actively campaigning to erode the geopolitical bias narrative. Investigating Afghanistan may prove uniquely difficult, however, because “investigating insurgent crimes and attempting to assign individual criminal responsibility for them will test the investigative capacity of the court.”10 This is especially true because the ICC has traditionally focused on prosecuting key leaders who orchestrated human rights violations, rather than foot soldiers that actually committed the violations.

It is also possible that an ICC investigation in Afghanistan would bring the United States (a non-state party) under the ICC’s scrutiny. While investigating Afghanistan, the ICC would be able to investigate alleged war crimes that the United States has committed in the region, such as the U.S. attack on a Médecins Sans Frontières facility that resulted in several dozen deaths.11 The Prosecutor could massively erode the geopolitical bias narrative if she investigates and later tries the United States for proven human rights violations. Realistically, however, the ICC will most likely focus on crimes committed by Taliban forces in Afghanistan, leaving the United States out of the spotlight. It would be highly risky—with little chance of reward—for the ICC to take on the United States.12

Another country that the OTP could begin investigating is Iraq/United Kingdom. Since reopening its preliminary investigation in 2014, the ICC has focused on “alleged crimes committed by United Kingdom nationals in the context of the Iraq conflict and occupation from 2003 to 2008, including murder, torture, and other forms of ill-treatment.”13 In July, the Prosecutor announced that it has not officially ruled out prosecuting Tony Blair for war crimes.14 Opening an investigation in Iraq would have major repercussions for future withdrawals because it would erode the geopolitical bias narrative and signal to states parties that the ICC is not beholden to western powers. This course of action is largely contingent on the OTP’s consideration of the Chilcot Report, which will hopefully “provide further context to the allegations of war crimes by British troops in Iraq.”15 At the same time, investigating the United Kingdom may backfire and result in the United Kingdom deciding to withdraw from the ICC. Thus, the likelihood of an investigation against the United Kingdom may be just as low as one against the United States.

Finally, the OTP could dissuade additional withdrawals by investigating Colombia. The ICC has had an ongoing preliminary examination in Colombia since 2004 for war crimes and crimes against humanity that were “committed in the context of the armed conflict between and among government forces, paramilitary armed groups and rebel armed groups.”16 Until now, the OTP has not initiated an investigation in Colombia because the government and opposition forces (FARC) were engaged in peace negotiations, which just concluded in August.17 The final peace agreement addressed the ever-present peace versus justice dilemma by including an explicit “exclus[ion] [of] amnesties and pardons for crimes against humanity and war crimes under the Rome Statute.”18 The peace agreement also established a “Special Jurisdiction for Peace” to address human rights violations at the national level.19

A few weeks ago, however, Colombian voters rejected the peace agreement via a nationwide referendum.20 Colombians rejected the peace agreement because “[t]he deal would have allowed rebel leaders to avoid jail if they confessed to their crimes such as killings, kidnappings, indiscriminate attacks and child recruitment, something that many Colombians found hard to swallow.”21 Human Rights Watch similarly reported that “the rules announced by the government and FARC could [have been] used to ensure broad immunity for state agents…including creating a shield against prosecution for the systematic execution of as many as 3,000 civilians.”22 Currently, Colombian President Juan Manuel Santos has “pledged to deliver a peace accord by Christmas” of this year and “warned that further delay could imperil the process.”23 At this time, domestic uncertainty and the looming threats of resumed conflict and impunity for perpetrators give the OTP ample cause to begin an investigation in Colombia. The Prosecutor should continue to monitor the peace negotiations and be ready to step in and investigate. This is important not only to curtail the geopolitical bias narrative and prevent state party withdrawal, but also to protect victims of violence in Colombia.

Conclusion

Ultimately, it will be difficult for the ICC to navigate the coming months because it must juggle the competing interests of (1) dissuading states parties from withdrawal and (2) avoiding the appearance of making politically-driven decisions. If the OTP does begin opening new investigations in the coming weeks and months (particularly in Colombia), it will be important for the ICC to emphasize that these new investigations are independent from, and not a political response to, the three African country withdrawals. It will probably be impossible for the ICC to avoid appearing impartial in this highly contentious situation, but this should not deter the court from opening new investigations.

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

  1. 1.

    See Edmund Blair, Burundi notifies U.N. of International Criminal Court withdrawal, Reuters, Oct. 26, 2016, available online.

  2. 2.

    See International Criminal Court, Preliminary Examination: Burundi, available online (last visited Nov. 15, 2016).

  3. 3.

    See Camila Domonoske, South Africa Announces Withdrawal From International Criminal Court, NPR, Oct. 21, 2016, available online.

  4. 4.

    The only non-African country that the ICC is currently investigating is Georgia. See International Criminal Court, Situations under investigation, available online (last visited Nov. 15, 2016).

  5. 5.

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

    (“[S]ome African leaders have called the court an instrument of modern colonialism, noting that all of those convicted have been Africans”);

    See also Domonoske, supra note 3; Is the ICC biased against African countries?, Al Jazeera, Mar. 26, 2016, available online.

  6. 6.

    See Chan & Simons, supra note 5.

  7. 7.

    At this point, the preliminary investigation in Palestine should not be considered for an upgrade to investigation because the ICC would be forced to address complicated, hyper-politicized issues such as the question of Palestine’s statehood.

  8. 8.

    See International Criminal Court, Preliminary Examination: Afghanistan, available online (last visited Nov. 15, 2016).

  9. 9.

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

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    Richard Falk, Opening the other eye: Charles Taylor and selective accountability, Al Jazeera, May 1, 2012, available online.

    (“[I]t might be well to remember that the United States—more than any country in the world—holds itself self-righteously aloof from accountability on the main ground that any international judicial process…Congress has even threatened that it would use military force to rescue any US citizens that were somehow called to account by the International Criminal Court in The Hague, and has signed agreements with more than 100 governments pledging them not to hand over US citizens to the ICC.”).

  13. 13.

    See International Criminal Court, Preliminary Examination: Iraq/UK, available online (last visited Nov. 15, 2016).

  14. 14.

    See International Criminal Court, Statement of the Prosecutor correcting assertions contained in article published by The Telegraph (Jul. 4, 2016) available online.

  15. 15.

    Id.

  16. 16.

    See International Criminal Court, Preliminary Examination: Columbia, available online (last visited Nov. 15, 2016).

  17. 17.

    See 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.

  18. 18.

    Id.

  19. 19.

    Human Rights Watch, Colombia: Prosecution of False Positive Cases under the Special Jurisdiction for Peace, (Mar. 28, 2016), [hereinafter False Positive Cases] available online.

  20. 20.

    Sibylla Brodzinsky, Colombia referendum: voters reject peace deal with FARC guerrillas, The Guardian, Oct. 3, 2016, available online.

  21. 21.

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

    (“[C]ritics 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.”).

  22. 22.

    See False Positive Cases, supra note 19.

  23. 23.

    Mulholland & Vulliamy, supra note 21.

The Registry Should Focus Outreach Efforts on States Parties at Risk for Withdrawal from the Rome Statute

The Assembly of States Parties should provide more funding to the Registry for its outreach function. The registry should expand its operations beyond situation states to states parties seen as a risk for withdrawal. This outreach strategy should focus on States where the governments are sufficiently democratically accountable for public engagement to influence foreign policy. The Registry should also focus on actors within the society who are best situated to influence the government.

The Strategic Plan for Outreach of the International Criminal Court identifies the goals of “ensuring the quality of justice and being a well-recognized and adequately-supported institution.”1 Its objectives are providing information to affected communities, promoting a greater understanding and support for judicial proceedings, fostering participation of local communities, responding to concerns, countering misinformation, and promoting access and understanding among affected communities.2 There is authorization within those goals and objectives to target outreach operations at non-situation states parties, yet the Registry only engages in outreach in situation states.3 Given limited resources this prioritization is understandable; however, the recent announcements of withdrawal should give the Court and the Registry pause to consider augmenting their outreach program with additional efforts in states parties which may be at risk to withdraw.

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.

The International Criminal Court should not Respond Politically to South Africa’s Declaration of Intent to Withdraw from the Court

If the International Criminal Court responds politically and negotiates with South Africa on the obligation to arrest, the Court will further threaten its credibility and set a negative precedent of political negotiations.

In the past few weeks three countries have declared their intent to withdraw from the International Criminal Court (ICC): Burundi, Gambia, and South Africa.1 While this is concerning on all three fronts, the issue of South Africa is more complex than the other two. Burundi and Gambia, two nations led by autocratic leaders, are likely withdrawing due to their imminent participation in gross atrocities and thus fear of being subject to future investigation and prosecution by the Court.2 However, South Africa states it is intending to withdraw because the Rome Statute is inconsistent with South Africa’s law that gives sitting leaders diplomatic immunity.3

South Africa was an early supporter of the Court, one of the first signatories to the Rome Statute, and played a significant role in the establishment of the ICC.4 However, when Sudanese President Omar Hassan al-Bashir visited the country last year, the government did not arrest him. The refusal to arrest could be viewed as South Africa signaling contempt for the Court, and seemed to further delegitimize the ICC. With South Africa’s withdrawal comes many daunting choices for the Court, one of which is opening negotiations about states parties’ obligation to arrest sitting heads of state. Although South Africa’s withdrawal has the potential to spark negative consequences, negotiating states parties’ obligations in order to avoid withdrawal has much higher costs.

Rather than negotiate with South Africa in regards to arresting sitting heads of state who are indicted by the ICC, the Court needs to stand its ground in the face of adversity and reaffirm states parties’ obligation to arrest under the Rome Statute. As a court of last resort, the ICC will often times be indicting people in positions of power; what message does it send to victims if those perpetrators are free to roam without worrying about accountability? This is a time for the ICC to show its strength and commitment to justice rather than its fear of South Africa withdrawing and the consequences that might have. Whatever actions the ICC takes in this situation will set a precedent for dealing with future threats of withdrawal. If South Africa’s obligation to arrest Al-Bashir is somehow negotiated, other states parties may think if they’re not happy with one of their obligations as a member of the Court, they can threaten to withdraw, and the ICC will adjust accordingly in order to keep them as a member state.

Although there is a chance that other African nations will follow in South Africa’s footsteps and withdraw from the Court, most notably Kenya, multiple African states and organizations have reaffirmed their support for the Court.5 Eight countries have spoken out about their commitment to the ICC and the fight for international criminal justice, as well as 24 African and international organizations.6 In the coming weeks, hopefully more countries will join in speaking out against South Africa’s decision.

While South Africa’s withdrawal may have negative effects in the short term, setting a precedent of political negotiations would be extremely damaging in the long term fight for international justice. The ICC does not have a mechanism to make arrests on its own, so it relies on states parties to do so; without this commitment, convictions would be near-impossible. As the self-proclaimed patron of peace in Africa, it is alarming that South Africa is not more concerned about holding al-Bashir accountable for his crimes in Sudan, and this seems to be a digression from the progress South Africa has made in promoting human rights.7

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

  1. 1.

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

  2. 2.

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

  3. 3.

    Milena Veselinovic & Madison Park, South Africa announces its withdrawal from ICC, CNN, Oct. 21, 2016, available online.

  4. 4.

    Camila Domonoske, South Africa Announces Withdrawal From International Criminal Court, NPR, Oct. 21, 2016, available online.

  5. 5.

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

  6. 6.

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

  7. 7.

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

What are the Consequences of Withdrawing from the International Criminal Court?

In the past decade millions of African lives have been lost; this is due to a series of gross genocidal campaigns and humanitarian crimes that have swiftly taken place across the nation. The integral role of the International Criminal Court (ICC) is to administer justice, punish perpetrators of crimes and deter future atrocities from taking place. That being said a number of critics have voiced serious concerns about the courts potent focus on African states and the perils it may face need this practice continue.1 It is therefore not surprising that the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC within the recent weeks. This paper will examine the consequences of withdrawal as well the strides that can be made in order to deter other signatory states from exiting the court.

Provisions in Article 127 of the Rome Statue2 allow for member states to withdraw from the ICC upon notification to the UN Secretary General.3 The three African countries previously mentioned have all finalized the formalities in doing so, and if followed through, their withdrawal from the court will be concluded in October 2017. There are a multitude of possible outcomes both regionally and internationally, that need to be considered in the wake of such decisions. In September 2013 in an unprecedented and contentious turn of events the Kenyan Parliament passed a motion to exit the court, although they still remain a member of the tribunal, their attempt created a domino effect within the African Union. For this reason Burundi’s withdrawal, although not surprising, was one of the first official attempts at a successful exit plan, encouraging other African nations and leaders to follow suit. South Africa’s subsequent withdrawal from the court is a clear example of this effect in practice. Known for its progressive judiciary and liberal stance, South Africa’s departure came as a shock to the international community and many proponents of the court. This decision will have significant implications for the legal landscape in South Africa4 and undoubtedly affect the courts reputation in the eyes of other African nations.

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.

My point of departure is an emphatic objection to South Africa's withdrawal as a State Party, however, I have grave difficulties with some of the arguments advanced. South Africa opted, when it could have gone the Nuremberg route, for reconciliation and the Truth & Reconciliation Commission arguably barely scraped the surface. This essentially meant that many who committed atrocities against the black majority got away with murder (and indeed much more). The second point I need to make is that it is quite dangerous to assert (albeit reference is made to an article in the Economist), that our judiciary is somehow involved in a process which would suggest a blurring of the separation of powers doctrine. It might be semantics but the suggestion that the 'Supreme Court' is putting or has put an end to President Zuma's 'authoritarianism' is somewhat hyperbolic. I venture to say that so strong is our democracy & respect for the rule of law that not even the President escapes scrutiny by Chapter 9 institutions. Our domestic courts are there to interpret & apply the law & to measure law and conduct against Constitutional prescripts. They have no role to play in the political landscape at all. Thirdly, I'm in agreement that the Omar Al Bashir matter was approached incorrectly but closer scrutiny would reveal that the reasons advanced by the South African government for allowing President Omar Al Bashir to set foot on South African soil was influenced by an incorrect understanding and interpretation of the law. If South Africa had an open-door, read defiant, policy, then President Al Bashir would've attended the inauguration of President Zuma as well as the 2010 World Cup. However, Al Bashir was advised on both occasions that he would be arrested. It is interesting that nothing is mentioned in this discussion about Russia and its notice to the UN to the effect that it has no intention of becoming a State Party. The discretionary prosecutorial model of the ICC has become the bush behind which parties seek to hide. It is so easy in such articles to refer to the likes of President Zuma as corrupt yet the same kind of candor would be missing in the case of superpowers. Context is of critical importance, if we want to see the ICC functioning.

Do African ICC Parties Wish to Withdraw from the ICC? Let Them Leave!

The purported withdrawal of a small number of African states from the ICC has created a rather unacceptably high degree of hype, which obscures the undeniable positive developments that the international criminal justice has achieved. International criminal justice is a project, which, for better or for worse, has been principally embodied by the ICC. This is an international institution which is not flawless, which has made mistakes in the past and will most probably make mistakes again (although one hopes not to repeat the same ones). Like all other human endeavours, the ICC is far from perfect. But there is a specific organ whose role is, inter alia, to supervise the operation of the ICC bench, its methods and its procedures and castigate it if these are found to be wanting. This is the Assembly of States Parties, this is the role that it should play and, arguably, it has not executed it as it should have. If the ICC collectively or certain members of its bench have not carried duties and obligations as they were supposed to do and this view is shared by a clear majority of parties then the Assembly must act. To be silent over mistakes and blunders does not make an institution stronger; on the contrary it pushes it gradually towards oblivion and a slow death. The ideals and the principles guiding the operation of the ICC are too important to allow this to happen.

Naturally, all ICC parties have the right to withdraw from the Rome Statute and it could not have been otherwise. That these states will cause a furore before and during secession is also to be expected. However, if done in a proper manner and as dictated by international relations etiquette, it cannot be objected to. Arguably, this was not the case when the President of Namibia, in a prepared speech for the AU Assembly Ordinary Session in July 2015, said that the ICC was becoming an ‘abomination’ by abrogating its mandate. The same is true when in May 2016 the President of Uganda, during its inauguration speech for his fifth consecutive term in office, called it ‘a bunch of useless people’, which prompted the walking out of North American and European dignitaries from the event. And to use the likelihood of withdrawal as propaganda to lure fellow ICC parties to follow suit is also objectionable; reportedly, the President of Namibia has lobbied other African ICC parties to leave as well.

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.

I admire the Prosecutors' forethought to question the various effects on all nations, on all people and itself first as the protector of those two. The predicament of disabled law-enforcement and ill-equipped duty of sole protector of human rights is not the fault of the ICC, caused by or perpetuated by the OTP, rather they are the leaders out of the situation, the solution, the irminsul - the mechanism.

A recent discovery of Euro-African-Asian-American archives describes how the ICC was originally dis-empowered and detached from independent mainline funding, eminent rule and eminent power. As those items are restored, the ICC becomes everything our forefathers intended for our protection worldwide. When that happens the prosecutors/judges can move in any direction, at any length to establish justice and enable peace. This is to say aggressive popular voting to control hereditary properties and rights may draw the attention of the Prosecutors as well. The Prosecutor may skip the (beguiled) actors, and focus on underlying criminal behavior and subversive factors.

In example, few people realize Gambia is the east landing of the real AT&T Transatlantic Cable, which is a target of the international crime syndicate since it was laid 1848. Gambia's rights are granted by the Prussian's (pre-Russia orthodox man 1500 bc) who laid the cable under Privilegium Maius with the responsibility to guard that connection, which is now more important than Constantinople ever was. President Jammeh has quietly protected that port when every cable to the west landing has been stolen and corrupted. And Alpha Diallo, the only AT&T Global Network Engineer in the world was born there in Gambia and educated in that land. Alpha built several “total” energy systems for his village, completed higher education college there and was a full time engineer for NASA at age 14, which lasted 20-years while he taught at Embry Riddle Aeronautic Institute and obtained multiple degrees in engineering – this to give you an idea of the endeavor under consideration and potential for criminal targeting and inhumane encroachments.

Likewise, the public policy makers and private sector rule makers in the world have a valid claim to legitimate commerce and economic growth, and/or economic repair revenue from the area investment (hallmark, coin rack, municipality).

Business logic tells us a conflict of “economic rights” in a coin rack with no local solution has to be caused by a crime elsewhere with a common connection. It will be the Prosecutor that track down the principal offenders and Prosecutors will recover that economy ending the conflict with a substantial economic gain under the orthodox rule of law. Orthodox means order-of-the-ox = rule of Ephraim.

I view the effect of the statements of intent to disavow as a golden opportunity for the ICC to find justice, entrench permanent solutions for world economic problems and cut the head off the international crime syndicate while substantiating it's supreme existence (www.amicc.org) and sustaining the ICC's future by 1) recovering it's original commission from the coin racks, and 2) crime solving fees in trillions; thus ending it's dependency for funding and establishing eminent jurisdiction, rule and eminent power.

The built-in protection of placing ultimate control on world affairs in the court is every person on earth maintains legitimate control over the court by immediate claim online, telephone, or mail.