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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?”

Hanni Maoz
4993
November 15, 2016
12:57 pm

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.
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.
Lorraine Josiane Manishatse, President promulgates Burundi withdrawal from ICC, IWACU English News, Oct. 19, 2016, available online. ↩
3.
Gambia withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online. ↩
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.
Id. at Article 15. ↩
6.
Id. at Article 18. ↩
7.
Neha Jain, Conceptualising Internationalisation in Hybrid Criminal Courts, 12 SYBIL 81 (2008), abstract available online. ↩
8.
Id. at 2. ↩
9.
Id. ↩
10.
Id. at 7. ↩
11.
Makokha Ronald Walala, A Critical Assessment of the International Criminal Court’s Performance (2002-2008) (Apr. 22, 2009), abstract available online. ↩

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