Wednesday, April 24, 2019
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Leaving the International Criminal Court

The International Criminal Court

The International Criminal Court (ICC) in The Hague, and the manner in which it is perceived to act is once again making headlines, and again, regrettably, the issues being raised are far from positive.

With South Africa, Burundi, and Gambia all confirming their intention to withdraw from the Court, international justice arguably finds itself at a cross-roads once more.

It is important to stress at the beginning, that despite the criticisms raised here or elsewhere, that it is the view of this author, that the ICC plays an essential role in developing and shaping principles of international law and further establishing a culture of accountability rather than impunity. That said, one should not be afraid to make legitimate criticisms and propose ways in which to reform a much needed tool of international justice. To criticize is not to ignore or call for abolition - it is merely recognition that it could be, and must be, done better. 

The ICC is an ambitious project that is still in its infancy and it should be recognized as such. The suggestions emerging that it is a 'Caucasian Court' is deeply offensive to the diverse group of highly qualified  professionals who work in all organs of the Court (Chambers, Prosecution, Registry and Defence).  Those making such comments should take a long, hard look at themselves and their true motivation for leaving this exclusive club rather than making such broad sweeping allegations. 

The threats to withdraw by certain nations are longstanding, with many African nations having threatened to reject the ICC for some years.  Their issue being that the ICC has since its inception appeared to focus almost exclusively on African nations, and thus there is the perception of bias against such States and with it accusations of imperialism and hypocrisy. 

The catalyst was perhaps the manner in which it approached the situation in Kenya, and that of its President, Uhuru Kenyatta and Deputy President, William Ruto.

As I have written previously, the Ruto case contains, in a microcosm, every criticism ranged against the ICC, “The publicity drive that announced the case, enabled the media to pronounce his guilt; key witnesses were procured by NGOs, funded by European governments, well known for opposing Ruto politically; all of whom went on to recant or contradict their original testimony at trial, or refuse to appear at all”.

I stand by this position, not from the standpoint that an investigation, and thereafter a prosecution was not justified, but the manner in which it was approached fuelled the fire of bias.  It is clear, as I have previously remarked, that the current Prosecutor, Fatou Bensouda, is not at fault for this as she inherited a problematic caseload from her predecessor, Luis Moreno Ocampo, and since that time has attempted to redefine her Office and bring cases before the Court that merit international consideration. She has further been forced to operate without sufficient resources and against a background of diminishing State cooperation.  

The ICC still operates without the might of the United States of America, China, Russia, Israel and India, all having refused to join this exclusive club of nations and with leading States in the African Union seeking to withdraw and create their own exclusive club – notably one that would maintain sitting Head of State immunity and thereby undermine any real notion of accountability.

The ICC was created as the first permanent international court to address rising impunity across the globe and target those States that were unwilling or unable to hold leading political and military figures accountable.

Whilst, there are legitimate criticisms for what the ICC does not, and cannot, do, there is little credible justification in criticising the ICC for what it does do – namely, targeting States that have failed to investigate conduct within their own borders that constitute international crimes.
The ICC has been continuously undermined by its very jurisdictional basis.  It can only look at situations in those States that have ratified, or have agreed to be bound by the Rome Statute, or situations in which the UN Security Council have referred to the Court.  That means situations such as Syria, Iraq, North Korea, Egypt, Bahrain and elsewhere fall outside of its jurisdictional reach and the purported actions of the military forces of the United States, United Kingdom, Russia, Iran and China are not subject to meaningful investigations. 

Those that criticise the ICC and the narrow scope of its investigations have often used the ‘why us?’ approach.  Whilst, there are legitimate criticisms for what the ICC does not, and can not, do, there is little credible justification in criticising the ICC for what it does do – namely, targeting States that have failed to investigate conduct within their own borders that constitute international crimes.

Some of the concerns raised by those States seeking to withdraw are legitimate – many, if not most, are not. It is clear that the recent announced withdrawals are not being made on an ideological basis, although this is no doubt the reasoning espoused by those nations.

Burundi is the subject of increasing attention by the international community.  Following a 9-month investigation, a UN report examined instances of torture and the murder of government opponents in the State.  The investigators, following the interview of numerous individuals “…found evidence of rapes, disappearances and mass arrests, as well as the torture and murder of many thousands of people”.

It may be argued to be somewhat convenient that with the increased scrutiny, and allegations of mass human rights violations are met with withdrawing from an international mechanism of justice that has the mandate to investigate, and prosecute where appropriate.

South Africa, a country that railed against injustice and human rights violations for decades is now seemingly rejecting the very accountability that it fought for so long.  Its reasoning however is somewhat different to that of others.

South Africa failed to discharge its obligations to the ICC, and detain the Sudanese President, Omar al-Bashir who is subject to an arrest warrant, when he visited the State.  There is likely to be, and must be, consequences for such a refusal.  It cannot therefore be argued to be fanciful to suggest the reasoning for withdrawal is an attempt to avoid such consequences, and in doing so, further cement relations with other African states who have also voiced criticism of the ICC.

Respectfully however, this is a foolish course of action, and akin to a ‘tantrum’.

For the ICC to properly function, State Parties must seek to address and voice concerns with a view to change, not simply walk away and ignore the issue; in doing so, the clear interpretation is that once again, States are becoming, or willing to become, blind to impunity, and thus there is regression rather than development.

It is difficult however to opine on what these States are seeking to achieve.  The fact that they have, or may withdraw does not mean that they are no longer obligated to act in accordance with international law, nor does it absolve them of any responsibility should allegations of international crimes surface.  Further, it does not protect anyone from prosecution for conduct committed whilst they were a State party.  The decisions therefore are perhaps symbolic in their effect and aimed more at a domestic or regional audience as a political stance rather than a statement of purpose in the international arena.

Symbolism however is powerful, and their withdrawal is dangerous insofar as the pursuit of justice and the fight against impunity is concerned.  It is however also an opportunity.

The reality, is that the ICC has been underfunded and understaffed from its inception.  There is no system of international enforcement.  There are few, if any, sanctions for non-compliance.  The Office of the Prosecutor is forced to rely on NGOs and local partners in conducting investigations due to the lack of capacity within its own institution.  In its present form it simply does not have the resources to commit to the situations that require its attention.

There is now therefore an opportunity to strengthen the institutional framework and act in a committed way in seeking to address impunity and pursue accountability.

There is talk of the African Union seeking to create and develop its own mechanism, or court, to investigate and prosecute international crimes, and such an intention is laudable.  However, it has been suggested that such a process would provide immunity to sitting Heads of State.  This is not accountability, and this is not true to the basic principles of justice, in that justice is blind.

The ICC therefore is, and will always be relevant and needed, but it is in need of reform so as to allow it to become a truly international institution that pursues accountability where required.  Without reform, it risks becoming a ‘gesture’ or a ‘vanity project’ of western nations.

Such reforms are needed immediately.  The ICC Prosecutor inherited a difficult caseload from her predecessor, and this required her office to complete those cases already underway.  However, there is now an opportunity to consider all situations across the globe that justify attention.  Palestine, Bangladesh, Iraq, Syria, Ukraine, and Georgia for example.

It is unfair to suggest that the ICC is biased against African States, but it has a perception of being so given past actions.  As these withdrawals have shown, it doesn’t matter if perception reflects reality as the damage has been done, and despite the true reasons for the recent withdrawals, the ICC is at risk of this legacy if changes are not wrought.

The ICC moved to new premises earlier this year. This was heralded as a statement of purpose.  The building matching the importance of the institution. Now is the time for States, all States, to demonstrate their commitment to justice, accountability and ending impunity. That requires action and support, not inaction and isolation.

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