ICC withdrawal justified?

Published 24th November 2016

It has been a busy few weeks in international criminal justice. Burundi, South Africa and Gambia are leaving the Rome Statute and Russia has symbolically unsigned.

While the African states have their unique reasons for withdrawing from the Rome Statute, a commonly shared and loudly articulated perception is that the ICC is targeting Africa. While much attention is given to this alleged bias, reality is far more nuanced.

Granted, all the cases and situations under investigation currently are from the African continent, except the situation in Georgia. Democratic Republic of Congo (DRC), the Central African Republic (CAR), Mali, Cote d’Ivoire, Uganda, Kenya, Libya and Sudan are all under investigation or at trial phase. Yet cases in CAR, DRC, Uganda, and Mali came before the court by way of self-referral, meaning that autonomous independent African governments saw fit to refer the situation on their territory to the ICC. This is one of the three ways in which a matter comes before the ICC.

Most recently, on September 21, Gabon made use of the self-referral mechanism requesting the Office of the Prosecutor (OTP) “to open an investigation without delay”.

The number of self-referrals exhibit Africans making use of the court they were crucial in creating.

Kenya experienced the first use of prosecutorial proprio motu powers, which is when the prosecutor acts of his or her own volition and initiates a process in a signatory state. A similar situation exists with Cote d’ Ivoire. This constitutes the second way in which a matter can come before the ICC, but only after the country itself is found unwilling to pursue accountability.

The cases of Sudan and Libya display the third and most controversial way in which a case comes before the court – the UN Security Council referral. The UNSC can refer a situation to the ICC and the five permanent members (China, Russia, the US, Britain and France) can veto a referral. This is precisely why crimes in Syria continue to go unaddressed as the geopolitical interests of Russia and China keep preventing referral. The fact that three non-members (Russia, China and the US) have the power to veto and refer other non-ICC member states is highly problematic and creates a grave imbalance.

Despite the source of the referral being controversial, the court still has to conduct independent investigations to determine whether crimes against humanity, genocide or war crimes had been committed.

Much is said about the cases that are under investigation or at trial stage but many forget that the ICC has several non-African preliminary examinations.

The situation in Palestine has been under preliminary examination since January 16, 2015, after the government lodged a declaration giving the ICC jurisdiction and then it later acceded to the Rome Statute.

The Ukraine is another country under preliminary examination since April 2014.

The OTP is also looking into the alleged crimes of British Troops in Iraq during the war. The situation in Iraq/UK has been under preliminary examination since May 2014 where there are over a 1 000 victim accounts of alleged war crimes committed against detainees by UK troops. Several of the accounts relate to torture, including sexual assault and rape, sleep deprivation, electrocution, and waterboarding. There are also allegations of unlawful killings in British detention facilities.

The next preliminary examination of great significance is that of Afghanistan and the conduct of American troops. Given the unsubstantiated allegations that the ICC is a tool of neo-colonialism, and the sheer devastation caused in both Iraq and Afghanistan, the prospect of having the US and Britain face justice could significantly alter perceptions of bias and alleged lack of credibility.

The allegations of crimes in US detention facilities operated by the CIA seem to indicate that during interrogation US forces used torture and sexual violence to extract “actionable intelligence” from detainees – apparently all part of pre-approved interrogation techniques. In its preliminary examination report this month the OTP indicated it “would make a final decision on whether to request the pre-trial chamber authorisation to commence an investigation into the situation in the Islamic Republic of Afghanistan imminently.”

The ICC is not perfect and some of the grievances expressed by withdrawing states may have merit but none of them warrant throwing the baby out with the bathwater.

Those who refuse to be part of a universal justice system must be named and shamed and this includes the US, China, Russia and now, of course, South Africa, Burundi and Gambia.

**This article appeared in the Star Newspapers on 24 November 2016 under the title “Name and Shame ICC deserters”

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