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. ↩