Concerning the ICC Withdrawal Problem
Popular disappointment was easy to be exploited by corrupt leaders such as Jacob Zuma of South Africa, Pierre Nkurunziza of Burundi and Yahya Jammeh of Gambia, who have expressed their governments’ desires to withdraw from the ICC. While it may suit their political purposes, they are doing a great disservice to an idea and an institution that has taken so long to nurture and to bring about in the face of so much political opposition. And for that they must be stopped.
African countries were among the early supporters of the International Criminal Court (1994-1998) and their exceptions were high.1 But they quickly perceived themselves targeted by the prosecutor,2 after the Court opened investigations/prosecutions in four African nations.3 In 2010, the president and vice president of Kenya were indicted for “crimes against humanity” for the death of an estimated 1,000 persons, along with sexual violence, serious injuries and displacing persons, over a period of two years,4 which did not measure up to a standard of serious harm under the circumstances.5
The initial popular narrative among Africans was that with the advent of the International Criminal Court (ICC) they hoped to have a shield from predatory dictators whose ravages in the region over the last half-century have caused causalities in the millions. The popular disappointment was easy to be exploited by corrupt leaders such as Jacob Zuma of South Africa, Pierre Nkurunziza of Burundi and Yahya Jammeh of Gambia, who have expressed their governments’ desires to withdraw from the ICC.6 While it may suit their political purposes, they are doing a great disservice to an idea and an institution that has taken so long to nurture and to bring about in the face of so much political opposition. And for that they must be stopped. In the face of these positions, Botswana and other African state parties are supporting the Court7 and South African civil society and the South African Supreme Court are standing up to Zuma’s authoritarianism.8
Judicial institutions and systems undergo trial periods before they are firmly established. In many instances, the success of an institution is due to a particular personality whose role and influence at the time shaped the institution’s creation and set it on a path toward its future. Without Chief Justice John Marshall, it is hard to see how the Supreme Court of the United States would have succeeded as it has. Conversely, the success of the European Court of Human Rights was not due to a particular prominent leader, but to the contributions of many distinguished jurists who worked together within an institutional framework. More importantly, they had a political support network among jurists in the different state parties. In time, the European Court made its decisions on a routine basis in the heretofore unimaginable situation, where a single individual could bring a state to the bar of justice and have that international judgment become nationally enforced without further ado.9
Those who have worked on the creation of the International Criminal Court had hoped that the same path would be pursued and the same outcomes obtained.10 But that was not the case for a variety of reasons. No John Marshalls or collective like-minded judges emerged to shape the institution’s future. And the external support of jurists and others were not drawing the institution’s agenda and work.
In Rome in 1998, 120 states voted for the establishment of the International Criminal Court with 7 against and 21 abstentions, among those opposing it was Israel and the US, as well as China,11 all of whom were accused of crimes within the Court’s jurisdiction12 but none are state parties to Rome Statute.13 Since then the number of state parties has become 124,14 but without any evidence of greater support for the ICC among the major political and economic states in the world. In fact, the travailed history of the establishment of the ICC, some say since the end of WWI others since WWII, has been confronted by the realpolitik of those states opposing international criminal justice and the enforcement of international human rights.
The fact that the Court and its organs have been made part of the United Nations’ bureaucratic institution is probably its greatest handicap. United Nations bureaucracy with all of its failings has been well known over the last 60 years and no efforts of reform have succeeded. This type of bureaucracy is capable of sinking any judicial institution even when built on the highest expectations of so many states and peoples all over the world. And it was exploited by those states seeking to undermine the Court.
The cumbersome rules of human resources, the impossible rules of security that have made effective investigations almost impossible, and the cost imposed by United Nations’ standards have also made the institution financially unworkable. Since its inception, the ICC has cost over $1 billion15 with this year’s budge (2016) at €136.58 million,16 and a total staff of over 800 (neatly divided into national quotas, irrespective of levels of competence).17 Yet almost twenty years later, only four persons have been convicted, at a cost of $250 million per conviction with this and other results, disappointment is understandable.
But that is not all. The nature of the United Nations political beast of which the ICC is administratively part of, also reveals the hypocrisy of the Security Council which referred two cases, Darfur and Libya,18 to the ICC without providing resources, or political support, leaving the Court holding the bag of failures. And so it was that President (former General) Omar al-Bashir was duly indicted by the Court,19 to its credit, but never arrested by any African or Arab state that he visited.20 The United Nations Security Council shamefully did nothing to bring about his arrest, which it had referred to the Court.
To the general public and in Africa, the disparity between this and other African cases, and situations elsewhere in the world appear imbalanced. Suffice to mention, Bashar al-Assad and his senior military leaders as well as Vladimir Putin and his senior military leaders have been involved in the death of over 500,000 civilians in Syria in what is clearly crimes against humanity and war crimes, also generating 6 million refuges and internally displaced persons,21 but are beyond the scope of the most elementary justice. Given such a disparity in investigations and prosecutions undertaken by the Court and the desire of governments to withdraw from the Court, this is a wake up call. This is the time to take stock and eventually to make changes in the ICC and bring about a more effective support and better management.
The following recommendations can be implemented without much delay and with limited costs, they are:
(1) Prosecutor Fatou Bensouda, who is from The Gambia, should devote a substantial portion of her time travelling to all African state parties to meet with the judiciary, prosecutors, lawyers, and civil society and try to establish constituencies in these countries to enhance support for the ICC;
(2) President of the Court Silvia Fernández de Gurmendi and President of the Assembly of State Parties Sidiki Kaba should plan programmatic activities at the national, regional and international levels for judges, prosecutors, and lawyers from state parties to enhance knowledge and understanding of the ICC’s work and to enhance complementarity within the state parties.
These efforts would enhance the ICC’s visibility and credibility, and more particularly, it would enhance the role of national legal systems within the context of complementarity.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
The African nation Senegal was the first state to ratify in the Rome Statute in 1999. Additionally, African states are the largest block of state parties to the Rome Statute with 34 African states having ratified the Rome Statute. , The State Parties to the Rome Statute, available online (last visited Nov. 9, 2016). ↩
This perceived targeting is based on the fact that all four convictions obtained by the ICC are of Africans. Further, nine out of the ten current ‘Situations Under Investigation’ by the ICC are in Africa. See , Situations Under Investigation, available online (last visited Nov. 9, 2016). ↩
The Court’s jurisdiction, “shall be limited to the most serious crimes of concern to the international community as a whole.” (emphasis added). 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], art. 5. Thus, the alleged crimes did not fall within the jurisdiction of the International Criminal Court. ↩
The Time Has Come for a Permanent International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991). See also The International Criminal Court in Historical Context, 1999 St. Louis-Warsaw Transatlantic L.J. 55, 65-66 (1999). ↩
See The Legislative History of the International Criminal Court 100-01 ( 2016). & eds. 2nd rev. ed., See also , The Negotiation of the Rome Statute for the International Criminal Court and International Lawmaking in the 21st Century, 11 Pace Int’l L. Rev. 361 (1999), available online. ↩
Rome Statute, art. 5, supra note 5. (1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.) ↩
On January 1, 2015, the State of Palestine referred Israel to the International Criminal Court for “alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.’” The investigation is still in its preliminary phase. Palestine, available online (last visited Nov. 9, 2016). ↩,
Ten years, $900m, one verdict: Does the ICC cost too much?, BBC, Mar. 4, 2012, available online. See also , International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online. ↩,
This includes visits to South Africa, Uganda and Djibouti, all state parties to the Rome Statute. Press Release, , Al Bashir case: ICC Pre-Trial Chamber II finds non-compliance of Uganda and Djibouti; refers matter to ASP and UN Security Council, Jul. 12, 2016, available online. ↩
Syria and Russia Appear Ready to Scorch Aleppo, N.Y. Times, Sep. 25, 2016, available online; & , Unrelenting Assault on Aleppo Is Called Worst Yet in Syria’s Civil War, N.Y. Times, Sep. 26, 2016, available online; , ‘Doomsday Today in Aleppo’: Assad and Russian Forces Bombard City, N.Y. Times, Sep. 23, 2016, available online. See also , Stories From Syrian Refugees, available online (last visited Nov. 9, 2016). ↩& ,