Invited Experts on Withdrawal Question

Bassiouni Avatar Image M. Cherif Bassiouni Distinguished Research Professor of Law Emeritus DePaul University College of Law

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.

Argument

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).

  1. 1.

    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. Assembly of State Parties, The State Parties to the Rome Statute, available online (last visited Nov. 9, 2016).

  2. 2.

    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 International Criminal Court, Situations Under Investigation, available online (last visited Nov. 9, 2016).

  3. 3.

    These investigations were opened in The Democratic Republic of Congo, Uganda, The Central African Republic and Darfur, Sudan. Id.

  4. 4.

    These charges were either not confirmed or withdraw and prosecution did not move forward. International Criminal Court, Situation in the Republic of Kenya, available online (last visited Nov. 8, 2016).

  5. 5.

    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.

  6. 6.

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

  7. 7.

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

  8. 8.

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

  9. 9.

    European Court of Human Rights, The Life of an Application, available online (last visited Nov. 9, 2016).

  10. 10.

    M. Cherif Bassiouni, The Time Has Come for a Permanent International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1 (1991). See also M. Cherif Bassiouni, The International Criminal Court in Historical Context, 1999 St. Louis-Warsaw Transatlantic L.J. 55, 65-66 (1999).

  11. 11.

    See The Legislative History of the International Criminal Court 100-01 (M. Cherif Bassiouni & William A. Schabas eds. 2nd rev. ed., 2016). See also John Washburn, 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.

  12. 12.

    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.)

  13. 13.

    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. International Criminal Court, Palestine, available online (last visited Nov. 9, 2016).

  14. 14.

    Assembly of State Parties, The State Parties to the Rome Statute, available online (last visited Nov. 9, 2016).

  15. 15.

    Jon Silverman, Ten years, $900m, one verdict: Does the ICC cost too much?, BBC, Mar. 4, 2012, available online. See also David Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online.

  16. 16.

    Assembly of State Parties, Report of the Committee on Budget and Finance on the work of its twenty-sixth session, Doc. No. ICC-ASP/15/5 (Jul. 12, 2016) available online.

  17. 17.

    International Criminal Court, Facts and Figures, available online (last visited Nov. 8, 2016).

  18. 18.

    International Criminal Court, Situation in Darfur, Sudan, available online. International Criminal Court, Situation in Libya, available online (last visited Nov. 8, 2016).

  19. 19.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir, available online (last visited Nov. 9, 2016).

  20. 20.

    This includes visits to South Africa, Uganda and Djibouti, all state parties to the Rome Statute. Press Release, International Criminal Court, 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.

  21. 21.

    Anne Barnard & Somini Sengupta, Syria and Russia Appear Ready to Scorch Aleppo, N.Y. Times, Sep. 25, 2016, available online; Rick Gladstone & Somini Sengupta, Unrelenting Assault on Aleppo Is Called Worst Yet in Syria’s Civil War, N.Y. Times, Sep. 26, 2016, available online; Ben Hubbard, ‘Doomsday Today in Aleppo’: Assad and Russian Forces Bombard City, N.Y. Times, Sep. 23, 2016, available online. See also United Nations High Commissioner for Refugees, Stories From Syrian Refugees, available online (last visited Nov. 9, 2016).

Clarke Avatar Image Kamari Maxine Clarke, Ph.D., M.S.L. Professor of Global and International Studies Carleton University

African Withdrawals: Foregrounding Rome Statute Amendments as Critical to Addressing the Structural Inequalities in which the ICC Operates

In strengthening the international criminal justice project, we need to take seriously the various calls by African state parties to amend the Rome Statute in ways that decouple ICC indictments from global structures of inequality.

Summary

African State parties to the ICC participated in the Rome Statute for the ICC with the expectation that if the statute were not serving them appropriately, amendments would be possible, when needed. With the ICC’s exclusive African prosecutorial activity in Africa alone, the problem is that particular underlying structures of inequality that gave birth to the formation of the ICC continue to shape the perception of it as being a tool to adjudicate African states and not deployed for the economically rich and powerful states. Thus, in strengthening the international criminal justice project, we need to take seriously the various calls by African state parties to amend the Rome Statute in ways that decouple ICC indictments from global structures of inequality. And one of the ways to strengthen the international justice project is to not only work collaboratively with various institutions that address the political foundations of violence, but we need to also begin to take seriously the proposed amendments that are being reviewed by the ICC’s Assembly of States Parties (ASP). One such amendment is that of Article 16. While the Article 16 amendment is just one of the viable amendments being proposed by African states, looking to addressing African state concerns could go a long way in both rectifying some of structural inequalities of our time.

Argument

African State parties to the ICC participated in the Rome Statute for the ICC with the expectation that if the statute were not serving them appropriately, amendments would be possible, when needed. Prior to the commencement of withdrawal action, African state parties to the ICC argued for the need for the reform of the Rome Statute—if it were to align with expectations of fairness in international justice. The sudden announcement of Burundi’s withdrawal from the Rome Statute for the ICC, followed by South Africa’s intentions to withdraw, and then Gambia’s announcement of withdrawal captures the legal, political and emotional responses central to various African frustrations with the unequal domain within which the ICC operates. With the ICC’s exclusive African prosecutorial activity in Africa alone, the problem is that particular underlying structures of inequality that gave birth to the formation of the ICC continue to shape the perception of it as being a tool to adjudicate African states and not deployed for the economically rich and powerful states. The reality that the ICC’s reach is not universal and the world’s most powerful countries—the United States of America, to Russia, China, Japan, and India—are not under the jurisdiction of the ICC. This pattern of unequal engagement and the frustration that idea that member states are expected to cooperate with presidential arrest actions that may lead to regime change and further national turmoil are being cited as the reasons for current African state withdrawals. In strengthening the international criminal justice project, we need to take seriously the various calls by African state parties to amend the Rome Statute in ways that decouple ICC indictments from global structures of inequality.

One of the ways to strengthen the international justice project is to not only work collaboratively with various institutions that address the political foundations of violence, but we need to also begin to take seriously the proposed amendments that are being reviewed by the ICC’s Assembly of States Parties (ASP). The amendments to the Rome Statute were raised at the ASP meeting in November 2014 in which African States underscored the importance of undertaking reforms in order to produce a fair and effective sphere of international justice. They propelled attempts to lobby reform of the ICC, and if some concerns were addressed, various African states agreed that they would refrain from withdrawing from the ICC.

Different amendment proposals were submitted by South Africa and Kenya respectively and subsequently endorsed by the African Union commission. They included controversial amendments such as an amendment to Article 27 that insisted on the Irrelevance of Official Capacity of those who were indictable thereby denying immunity to those leaders who have enjoyed it in the past, as well as other less controversial ones such as amendments to: ii) the Preambular part of Rome Statute to allow for complementarity of regional judicial institutions, iii) Article 16 on the deferral of cases and ultimately addressing the exceptionalism of UN Security Council permanent members, iv) Article 70—Offences against administration of justice, and the v) Reduction of the powers of the Prosecutor.1 However, the continued exclusive Africa activity and the lack of progress with statute amendments led African states to engage in the development of a withdrawal strategy.

At the African Union Summit in January 2016 African states demanded the urgent development of a comprehensive strategy to address the perceived selectivity of the court, including collective withdrawal from the ICC. This led to the formation of an Open-Ended Ministerial Committee in which African states articulated the: (I) need for continental and country level ownership of the international criminal justice through the strengthening national judicial systems and working toward the ratification of the African Court, (II) importance of engaging with the UN Security Council and clearly communicating that no referrals of particular situations on the African continent should be made without deference to Assembly of the Union, and (III) need for a robust strategy to enhance the ratification of the Malabo Protocol expanding the jurisdiction of the African Court of Justice and Human and Peoples’ Rights to include international crimes. Because of the slow pace of possible ICC reforms, they also insisted on the (IV) need for timelines for withdrawals. Thus, contemporary withdrawals of African states reflect aspects of strategy and require that we address the reduction of future withdrawals by addressing those concerns that are viable for the shaping of a fair and equal international justice project.2 Yet, while some, like an Article 27 amendment of the irrelevance of national capacity provision, challenges the foundational spirit of the court and are difficult to support, others are quite viable and necessary if we are going to address the structures of inequality within which the court operates and perpetuates. For example, an examination of South Africa’s proposed Article 16 amendment is a case in point for it highlights the role of the United Nations Security Council (UNSC) and its referral and deferral mechanisms under Article 16 of the Rome Statute. It also raises questions about the fairness of the international system within which the statute in intricately interwoven.

Article 13 outlines the three triggers for the exercise of jurisdiction through which it affords the UNSC the power to refer a case to the ICC. And Article 16 provides the UNSC deferral power:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under the Chapter VII of the Charter of the United Nations, has requested the Court to that effect, that request may be renewed by the Council under the same conditions.

Under the United Nations Charter, the Security Council’s primary responsibility is to uphold international security and peace.3 Composed of 15 members, 10 rotating and 5 permanent members, including the United Kingdom, China, France, Russian Federation and the United States of America, the Security Council is responsible for determining the existence of a threat to peace and to take the appropriate action, be it diplomatic or military, to control the conflict.4 While exercising their right to vote, the permanent members are also able to veto decisions. They have been granted special status as permanent members. However, no African countries are members of the UNSC. On the other hand, the United Nations General Assembly is the main policymaking and representative organ of the UN. There are a total of 193 members that make up the General Assembly and each member is allowed one vote on important issues, including that of peace and security. In light of this structural imbalance, South Africa proposed the following amendment:

1) A State with jurisdiction over a situation before the Court may request the UN Security Council to defer the matter before the Court as provided for in (1) above. 2) Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under paragraph 1 consistent with Resolution 377 (v) of the UN General Assembly.

This amendment was proposed to address situations where the UNSC was unable to decide on a deferral request. It also responded to what Chidi Odinkalu (2014, Codesria public speech) called de facto immunity, a relation of engagement with international justice in which P5 states that have the economical and military power to exist outside of the reach of the court while also being able to refer cases to the prosecutor of the ICC. In this light, and in response to the UNSC’s inaction in relation to the AU’s request to defer the case of the president of Sudan, they advocated for UNSC’s failed decisions on deferrals to be transferred to the UN General Assembly for a decision.

While the Article 16 amendment is just one of viable amendments being proposed by African states, looking to addressing African state concerns could go a long way in both rectifying some of structural inequalities of our time while also strengthening the delivery of international justice writ large. Such an agenda has the potential to move us toward the rectification of the court’s work within the political realities within which it operates. This is what will contribute to building a stealthier domain of international justice.

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

  1. 1.

    The first meeting of the Open Ended Committee at the level of the Ministers was in New York. As it outlines in the relevant documents, “In undertaking its work, the Open-ended Ministerial Committee met three (3) times at the level of Ministers in New York—27 September 2015; New Delhi—30 October 2015; and The Hague—17 November 2015; and once at the level of Ambassadors on 23 October 2015 in Addis Ababa.” African Union, Progress Report of the Commission on the Implementation of the Decisions of the Assembly of the African Union on the International Criminal Court, Executive Council, 28th Ordinary Session (Jan. 2016), available online.

  2. 2.

    Id.

  3. 3.

    United Nations Security Council, Frequently Asked Questions, available online (last visited May 27, 2016).

  4. 4.

    Id.

Dicker Avatar Image Richard Dicker Director, International Justice Program Human Rights Watch

Defend the Integrity of the Rome Statute and a Court Worth Having

While giving a respectful airing to different views, strong court-supporting states parties must remain firm in their defense of the integrity of the Rome Statute so that the ICC remains a “court worth having.”

Summary

The withdrawals by South Africa and Burundi from the Rome Statute of the International Criminal Court (ICC) pose a real challenge to the evolving system of international justice centered on the ICC. Coming after escalating criticism from a small number of African leaders, the withdrawals represent a loss to the court, to the victims it serves and a threat to perceptions of the ICC’s legitimacy. This pushback is “buyer’s remorse” of a core principle of the Rome Statute—the irrelevancy of official position in possible prosecution before the court. While giving a respectful airing to different views, strong court-supporting states parties must remain firm in their defense of the integrity of the Rome Statute so that the ICC remains a “court worth having.” Fundamental principles agreed to in Rome cannot be “bargained off” in the face of exorbitant and baseless demands. Even with additional withdrawals, the outcome could be a strengthened Rome Statute system.

Argument

In withdrawing from the ICC, the government of South Africa cited a purported conflict between its ICC obligations and its ability to interact with leaders as a regional peacebroker. Significantly, a South African court had found that the Zuma government violated domestic law when it failed to arrest ICC fugitive President Omar al-Bashir of Sudan during his visit to the country for an African Union summit in 2015.

There is much at stake. Giving sitting leaders immunity for the most serious crimes would create perverse incentives for alleged perpetrators to hold onto power indefinitely or to gain power to avoid prosecution. Through its current about face on global justice, the Zuma government is sending a message to the nearly 20,000 African victims who have or will be participating in ICC proceedings.

Withdrawal does nothing to address the real gaps in the reach of the international justice system, including the failure of key powers, like the United States and Russia, to sign up to the ICC treaty as well as those stemming from the veto prerogative of the Permanent Members of the UN Security Council. These ugly double-standards need to be addressed, but the solution lies in expanding the ICC’s reach, not undermining it.

Doubtless, South Africa’s withdrawal is a blow. Its government played a vital role in the negotiation of the Rome Statute. At his invitation, I participated in a September 1997 meeting of the Southern Africa Development Community’s (SADC) justice ministers convened by Nelson Mandela’s Minister of Justice, Dullah Omar, outside Pretoria. Minister’s Omar’s objective was to work with his counterparts from SADC to formulate joint in the ongoing negotiations. Six weeks later, in the United Nations General Assembly I heard South Africa’s UN Ambassador proudly proclaim “the ten SADC principles” for an effective, independent and impartial ICC. This leadership flowed from self-confidence following the end of apartheid and the promulgation of a historic new constitution enshrining human rights and respect for the rule of law domestically as well as globally.

South Africa’s regressive step could likely provide political cover for additional withdrawals possibly by Kenya and others. Nairobi has mobilized opposition to the ICC inside the African Union due to the now-withdrawn ICC charges against Kenya’s president and deputy president. The AU has called for immunity of sitting leaders, but so far efforts pushed by Kenya for a mass walkout have achieved a much wider response.

The departure of any one state party is regrettable, but regret must not cloud perspective or diminish principle. A group of departing African states, driven by buyers’ remorse, represents a small fraction of African states parties. The court is hardly at risk of collapse or irrelevance. South Africa’s announcement has prompted an increasing number of states parties to affirm strong support for the ICC’s mission. These include Canada, Switzerland, Slovenia, Czech Republic, to name a few. The withdrawals could lead to a deeper understanding of and commitment to the ICC’s importance as the world’s accountability institution. Most significantly, the withdrawal of a few African governments has prompted strong statements of support for the court from a greater number of African states parties. This activism represents a step beyond July’s African Union Summit in Rwanda. There—at the ministerial level—five states parties, Nigeria, Botswana, Senegal, Cote d’Ivoire, and Tunisia, expressed their opposition to the further development of Kenya’s plan for large scale withdrawal from the Rome Statute. At the summit, several others entered objections to the final resolution. This pushback pierces the fictitious and self-serving narrative that African governments are opposed to the ICC. Depending on how events unfold, factoring in additional withdrawals, the result could be a court membership that is slightly smaller but more committed to assisting the ICC.

The next round in this contentious process will play out at the fifteenth session of the Assembly of States Parties meeting. While states should be open to dialogue with South Africa and other countries, they will need to be clear in these discussions on “redlines” to preclude re-negotiation over core ICC principles. The substantive “no go areas” should include any weakening of the provision allowing sitting heads of states to be prosecuted at the cocurt..

Given South Africa and Kenya’s revision of core principles, it could well be that the great majority of ICC countries may find there is no space for principled compromise consistent with integrity of the ICC treaty and the independence of the court. These governments are drawing a circle that cannot be squared. Consistent with Dullah Omar’s visionary leadership in 1997, it is clear that it would be better for those countries unwilling to stand for justice to leave. In the long run it’s preferable for the ICC to be, as former Canadian Foreign Minster Lloyd Axworthy stated in Rome, “a court that is worth having” than one with a larger membership linked by illusory agreement to weakened principles of accountability.

This is not to say that there is not more work to be done to improve the practice of the ICC. The court’s leadership is making progress, but there are still gaps: bringing about more efficient proceedings linked to better case selection; more meaningful victim participation; more court presence in the field and; greater impact in the communities most affected by the crimes alleged. This will all need to take shape as the court extends its reach out of Africa. It is already investigating in Georgia, and the coming years could see investigations in Afghanistan, Palestine, and Ukraine. The extension of jurisdiction will also challenge the more powerful governments—Russia and the United States—that have held themselves outside of the court’s jurisdictional consent regime. Simultaneously, international agencies, donor states and civil society must ramp up efforts to enhance national accountability efforts—the first line of protection for civilians at risk.

These steps will necessarily occur on a more difficult international landscape than the one on which the ICC was created. Back then some deemed that “history had ended.” These changes won’t mollify Jacob Zuma or Uhuru Kenyatta, not to mention Vladimir Putin or Donald Trump. That is another challenge for a court that is needed now more than ever. Precisely because the ICC represents a huge advance in the fight against impunity its path was never going be a straight line forward.

Scheffer Avatar Image Ambassador David Scheffer Mayer Brown/Robert A. Helman Professor of Law Northwestern Pritzker School of Law

Three Realities About the African Situation at the International Criminal Court

African States Parties, particularly those objecting to the ICC’s performance, have failed to understand or capitalize upon the legal authority of key provisions of the Rome Statute. The complaints lodged by some African leaders and the African Union, as well as some governments’ moves toward withdrawal, are disingenuous in character when their own conduct has failed to transform the ICC into a court of much wider situational jurisdiction outside of Africa.

Argument

There are three realities that merit closer examination in the context of the looming exodus of at least several African nations (South Africa, Burundi, and the Gambia) from the International Criminal Court (ICC). They are the power of States Parties to the Rome Statute to refer situations to the ICC, the power of the Security Council to refer situations to the ICC,1 and the power of the Security Council to stall an investigation or prosecution consistent with Article 16 of the Rome Statute.2 In all three areas of inquiry, African States Parties, particularly those objecting to the ICC’s performance, have failed to understand or capitalize upon the legal authority of key provisions of the Rome Statute. The complaints lodged by some African leaders and the African Union, as well as some governments’ moves toward withdrawal, are disingenuous in character when their own conduct has failed to transform the ICC into a court of much wider situational jurisdiction outside of Africa.

The Power to Refer Situations

It is well known to ICC scholars and practitioners that a State Party has the authority under Articles 13(a) and 14 of the Rome Statute:

“to refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

Any such referral to the ICC Prosecutor does not require any approval by the Pre-Trial Chamber in order to activate a formal investigation by the Prosecutor. That does not mean that the Prosecutor necessarily will find sufficient evidence to proceed with prosecution of any case pertaining to the referred situation. She may conclude there is insufficient evidence and thus terminate the investigation. Even then, the State Party referring the situation can, pursuant to Article 53(3) of the Rome Statute, so inform the Pre-Trial Chamber which then may review the Prosecutor’s decision and may request her to review her decision. If the Prosecutor has decided to terminate the investigation for particular reasons identified in Articles 53(1)(c) and 53(2)(c) of the Rome Statute, then the Pre-Trial Chamber must confirm the Prosecutor’s decision before the investigation can be concluded.

I point this out to emphasize that a State Party can relatively easily refer to the ICC Prosecutor a situation anywhere in the world that meets the Rome Statute’s jurisdictional requirements, thus triggering a formal investigation. Any such referral can be powerfully supported and thus advanced by the Pre-Trial Chamber in some circumstances even if the Prosecutor has decided to close her investigation. (This happened in 2015 with the Comoros.)3 So why hasn’t any State Party government on the African continent used the referral power to address their largest complaint, namely that the ICC, with the exception of the situation presently under investigation in the Democratic Republic of Georgia, has had no other non-African situation under official investigation and prosecution since the founding of the ICC in 2002? Granted, the Comoros referred4 a situation involving an alleged attack by Israel upon a vessel registered under the Comoros flag, as well as registered vessels of Greece and Cambodia. But the referral still pertains to an injury allegedly inflicted upon that African nation as opposed to a referral of a strictly non-African situation.

Any African State Party could refer to the ICC Prosecutor a non-African situation of atrocity crimes that meets the jurisdictional requirements of the Rome Statute, which under Article 12 would require crimes occurring on the territory of a State Party or perpetrated by the nationals of a State Party. There are a number of such situations today. They include claims of large numbers of extrajudicial killings in the Philippines5 and in Mexico,6 the atrocity crimes fueled by civil war in Colombia7 that may not be adequately adjudicated under complementarity principles, the war and its associated crimes in Afghanistan, and Palestinian claims. Many of these are already under preliminary examination by the Prosecutor, but she ultimately will need Pre-Trial Chamber approval to move forward to formal investigation.8 A referral by a State Party in Africa would catapult such situations into official investigations and hence non-African situations on the agenda of the ICC.

Thus, African concerns about the absence of non-African situations at the ICC ring hollow. There are preliminary examinations currently underway in seven non-African situations9 and, if political will were to arise in African capitals, there could be a sizable number of African State Party referrals of non-African situations (including any currently under preliminary examination) to join the on-going formal investigation of atrocity crimes in the Democratic Republic of Georgia.

Security Council Referrals

African States Parties understand the power of the Security Council to refer situations to the ICC in a manner consistent with Article 13(b) of the Rome Statute. Their complaint is that the Council has exercised that power under Chapter VII of the U.N. Charter only with respect to two African situations: Darfur (2005)10 and Libya (2011).11 They would ask why the Security Council has not referred alleged atrocity crimes in Syria or Iraq or Ukraine or North Korea or Palestine or Sri Lanka or Afghanistan or, for that matter, the United States with respect to tactics employed in interrogations and detainments and aerial bombings since 9/11. The answer is obvious given the composition of permanent members of the Security Council (United States, United Kingdom, France, Russia, and China), each one of which can exercise the veto power. The most prominent example is the situation in Syria, a non-party State, which has not been referred to the ICC because of an actual exercise of the veto power by Russia and China in May 2014.12

The 34 African States Parties13 comprise the largest regional block in the ICC. When all European States Parties (East and West) are consolidated into one group, they actually have the more significant number of 43. Nonetheless, the African States Parties could wield considerable influence on Security Council members, particularly the permanent ones, to refer non-African situations under U.N. Charter Chapter VII authority to the ICC. The fact that they have not exercised that diplomatic power effectively falls in large part on their shoulders. Using such power means prevailing on both Russia and China, the latter increasingly investing in Africa, to approve or abstain in, for example, a referral of the horrors long erupting in Syria or in North Korea. It would mean prevailing upon all permanent members to refer alleged atrocity crimes arising from the Sri Lanka civil war. A Security Council referral of the plight of the Rohingya in Myanmar is not implausible, but where is there African pressure to advance that cause? African States Parties also could intervene far more effectively with non-permanent Security Council members14 to press for such referrals by the Council.

But the credibility of African States Parties as supporters of the ICC, rather than as dissidents from the ranks of the African Union or rejectionists such as Burundi, South Africa, and the Gambia, would need to be demonstrated in order to wield such diplomatic clout with all members of the Security Council. This year Africa has Angola, Egypt, and Senegal as non-permanent members on the Council.

Of these three governments, only Senegal is a State Party (and very supportive) of the Rome Statute. Next year Ethiopia, a non-party State, replaces Angola on the Security Council. As it now stands, the easiest rebuttal of permanent Council members would be to listen to Angola (and shortly Ethiopia) and Egypt, which likely would balk at initiatives regarding the ICC, and bow to skeptical or rejectionist views of other key African nations that are States Parties. That is a reality that African States Parties as a whole either can change with more pro-active pressure on Security Council members to refer non-African situations to the ICC, or refrain from diplomatic pressure and further enable permanent members to avoid the issue entirely.

Security Council Brake on Investigations and Prosecutions

For years there has been a major campaign by the African Union and some African leaders and governments to pressure the Security Council to use its U.N. Charter Chapter VII enforcement authority to act consistent with Article 16 of the Rome Statute and block continued work on certain African investigations or prosecutions for a period of at least 12 months, including particularly those pertaining to top leaders in Sudan, Libya, and Kenya over the last decade. The Security Council, steered primarily by permanent members United States, United Kingdom, and France, as well as European and Latin American non-permanent members, has steadfastly refused to so cripple the ICC’s mandate and integrity for the sake of saving certain African strongmen from accountability for alleged atrocity crimes. No doubt that refusal to act consistent with Article 16 at the request of African rejectionists opposed to the ICC’s full scope of jurisdiction has fueled the withdrawal campaign among some African States Parties.

But the African campaign has fallen victim to the original intent behind Article 16. As the lead negotiator and head of delegation for the United States during the negotiations in the 1990’s, I was deeply engaged in the process of finalizing the text of Article 16. The United States had lost its own effort at the U.N. negotiations to restrict referrals to the ICC to the Security Council and to States Parties but subject to a Security Council check on such State Party referrals, as opposed to the ultimate outcome of broadening the referral power to States Parties acting without a Security Council check and the right of the Prosecutor to initiate proprio motu investigations.

The general terms of Article 16 were introduced by Singapore as a compromise following the defeat of the American position. Thus Article 16 became known as the “Singapore compromise.” It was an effort to attract the support of the permanent members of the Security Council for the Rome Statute, as well as calm the concerns of some governments about political manipulation of the ICC. At least there would be a backstop available in the Council if a State Party or the Prosecutor tried to use the ICC for unacceptable political objectives. It was conceived as a means of ensuring that the Security Council could block a referral by a State Party or initiation of an investigation proprio motu by the Prosecutor, but Article 16 was not conceived for the purpose of Security Council self-discipline of its own referrals to the ICC.

Once the Security Council referred a situation to the ICC, it was not considered plausible (even though it is theoretically possible) that the Council would reverse its own decision and abort investigations and prosecutions under that referral. That scenario simply did not enter the negotiating realm before or during the Rome talks. Rather, the Singapore compromise embodied in Article 16 was designed to ensure that politically motivated actions by States Parties or by the Prosecutor that might contradict Security Council aims could be suspended or terminated indefinitely by the Security Council acting under its Chapter VII authority. After all, the permanent members knew very well that if they wanted to use Chapter VII to shut down an ICC investigation or prosecution, they had every legal power to do so under existing U.N. Charter authorities. They did not require that power to be affirmed in Article 16 of the Rome Statute.15

The negotiating history of and the pragmatic purpose undergirding Article 16, namely that it serves as a check on State Party referrals and Prosecutor-initiated investigations, eluded African advocacy with the Security Council to reverse course on the Darfur and Libya situations that had been referred by the Council under Chapter VII authority. It is not surprising that at least some Council members—both permanent and non-permanent—probably saw the effort as illogical and manipulative of Article 16 for all of the wrong reasons.

Once the Council has acted under Chapter VII to refer a situation to the ICC, its members are not inclined to undermine the purpose and legitimacy of their original action in order to appease African strongmen. That would weaken the Security Council as a U.N. institution and as the guardian of international peace and security. At no time during the drafting negotiations on Article 16, in which African delegations engaged actively, was there any focus on reversing or constraining the Security Council and the decision it can reach to refer a situation to the ICC. The fact that the actual wording of Article 16 may lead some to seek a Security Council reversal of its own referral of a situation and the cases that emerge from it does not mean that the Security Council will see it that way. The original intent behind Article 16 appears to have prevailed.

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

  1. 1.

    With respect to the first two issues, see also David Scheffer, How to Move Beyond South Africa’s Notice of Withdrawal from the ICC, Just Security, Oct. 24, 2016, available online.

  2. 2.

    With respect to the third issue, see also David Scheffer, The Security Council’s Struggle over Darfur and International Justice, Jurist, Aug. 20, 2008, available online.

  3. 3.

    Press Release, International Criminal Court, Comoros situation: Dismissal of the Prosecutor’s appeal against decision requesting reconsideration of the decision not to initiate an investigation (Nov. 6, 2015), available online.

  4. 4.

    International Criminal Court, Preliminary examination: Registered Vessels of Comoros, Greece and Cambodia, available online (last visited Nov. 13, 2016).

  5. 5.

    Alex Whiting, It is Time for the ICC to open a Preliminary Examination in the Philippines, Just Security (Oct. 3, 2016), available online.

  6. 6.

    Mexico’s Federal Police chief fired after report on extrajudicial killings, FSRN, Aug. 30, 2016, available online.

  7. 7.

    Colombia referendum: Voters reject Farc peace deal, BBC News, Oct. 3, 2016, available online.

  8. 8.

    Rome Statute, Art. 15(4).

  9. 9.

    Afghanistan, Colombia, Iraq/United Kingdom, Palestine, Cambodia, Ukraine, and Registered vessels of Comoros, Greece, and Cambodia.

  10. 10.

    International Criminal Court, Situation in Darfur, Sudan, ICC-02/05, available online (last visited Nov. 13, 2016).

  11. 11.

    International Criminal Court, Situation in Libya, ICC-01/11, available online (last visited Nov. 13, 2016).

  12. 12.

    Press Release, United Nations Security Council, Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, SC/11407, May 22, 2014, available online.

  13. 13.

    International Criminal Court, State Parties to the Rome Statute: African States, available online (last visited Nov. 13, 2016).

  14. 14.

    United Nations Security Council, Current Members: Permanent and Non-Permanent Members, available online (last visited Nov. 13, 2016).

  15. 15.

    For additional discussion of this issue in the context of Africa, see David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 414-417 (Princeton University Press, 2012).