ICC Forum

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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?”

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.

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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). ↩

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