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How to Move Beyond South Africa’s Notice of Withdrawal from the ICC

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International Criminal Court, The Hague, Netherlands-Hypergio, Wiki Commons

As the dust settles following South Africa’s controversial and perhaps unconstitutional announcement on October 20 that it will withdraw from the International Criminal Court, both African and non-African States Parties of the ICC should explore ways to improve the pursuit of justice rather than backslide into dens of impunity.  The forthcoming session of the ICC Assembly of States Parties in The Hague on November 16-24 likely will see government and court officials try to grapple, once again, with the problem.

There is a long history underpinning the African relationship with the ICC.  I recall vividly how forthrightly the South African Government argued for justice and against impunity in the years of negotiations leading to and beyond the Rome Statute of 1998.  I personally witnessed it frequently, including when I sought African support for certain U.S. positions that would have narrowed the means by which to bring situations within the court’s jurisdiction.  South Africa pushed back hard on our proposals.  Frankly, there was no stronger voice than that of South Africa, which led the continent of Africa into the ICC with skillful enthusiasm as the country emerged from apartheid and gave us globally recognized leaders, such as Nelson Mandela, as champions for the protection of fundamental human rights and the enforcement of international criminal justice.

During six years of negotiations creating the ICC, including the two years drafting the Elements of Crimes and the Rules of Procedure and Evidence, I do not recall the South African delegation protesting the reach of the court’s personal jurisdiction to include the masterminds of atrocity crimes, particularly political and military leaders.  Indeed, holding such individuals accountable was always the clear objective of the ICC in the UN talks (as unambiguously demonstrated in Article 27 of the Rome Statute) even while negotiators from many countries would trumpet how South Africa had dealt with the perpetrators of apartheid of all ranks before its Truth and Reconciliation Commission.

The crime of apartheid was purposely included as a crime against humanity in Article 7 of the Rome Statute because of the South African experience and with the understanding that its illegality had become a matter of customary international law.  South African negotiators proudly pressed that point and to my recollection never suggested that only mid-level and low-level perpetrators of apartheid should be investigated and, if merited, prosecuted by the ICC.  Any such hypocrisy would have been noticed.

Nonetheless, as the angst of some—not all—African leaders rose during the last decade over the number of their own ilk being investigated, and lately convicted, of atrocity crimes by the ICC, there have been recurring talks and even amendment (Rule 134 quater) to the Rules of Procedure and Evidence to address African concerns.  There also has been defiance of the ICC by African leaders willing to prevent witness testimony (thus cratering cases), to permit travel to their countries of indicted fugitives from the ICC, and now action by Burundi to move toward withdrawal and formal notice by South Africa that it is doing so.  More African countries—led by individuals who seem not to be listening to their people and the victims of atrocity crimes but rather trying to protect themselves from scrutiny either for alleged criminal conduct or blatant failure to cooperate with the ICC—may take the cue.

Richard Goldstone and Alex Whiting have expressed excellent points in their two essays in Just Security.  Beyond their views, I want to propose several ways that African governments and the ICC itself can improve their relationship.

First, when the Rome Statute was being negotiated in the 1990s, governments anticipated that the most likely means of bringing perpetrators of atrocity crimes to justice before the court would be through referrals of situations by one or more States Parties pursuant to Articles 13(a) and 14 of the Rome Statute. Negotiators, including myself, assumed that governments committed to the objectives of the ICC would take the commission of atrocity crimes seriously and refer any such situation to the ICC Prosecutor even if the particular State Party making the referral had no relationship with or involvement in or was not a victim of the particular situation.

In reality, that power of referral ironically morphed into self-referrals by a number of African governments: Uganda (encouraged by the ICC Prosecutor), Democratic Republic of Congo, Côte d’Ivoire, Mali, Central African Republic (twice), the Comoros, and last month Gabon.  None of these State Party self-referrals were technically initiated by the ICC, as they were launched by each of the relevant sovereign African governments.  Only the Comoros referred a situation that involved an alleged attack by another State (Israel) upon its territory (a vessel registered with the Comoros)—but that referral still involves the Comoros as a direct victim of the alleged crime.  Granted, registered vessels of Greece and Cambodia, non-African State Parties to the Rome Statute, also constitute part of the referral by the Comoros.

The fact remains that no African State Party to the ICC—and there are 34 of them constituting one of the largest and well organized blocks in the court—has used its power to refer to the ICC Prosecutor any situation of alleged atrocity crimes outside of Africa that does not involve that African nation.  None of the non-African situations under preliminary examination or investigation by the ICC Prosecutor were referred by any African State Party.  African leaders could have readily overcome the perception of bias against Africa arising from Security Council referrals (Darfur and Libya), the apparently inexplicable African self-referrals, and the ICC Prosecutor’s judicially-approved undertaking to investigate alleged atrocity crimes in Kenya, by referring situations outside of the continent of Africa.  They never chose that option and continue to fail to exercise it in parts of the world where the ICC can exercise jurisdiction.

One could imagine serious consideration being given even today to refer situations of alleged extra-judicial executions in the Philippines under the leadership of President Rodrigo Duterte, of Colombia in the aftermath of the failed referendum to approve the peace agreement with FARC  (even though Colombia has long been under preliminary examination but not as a matter of State Party referral), or of alleged extra-judicial killings in Mexico.  A State Party referral enables the ICC Prosecutor to initiate a formal investigation of the alleged atrocity crimes without awaiting any authorization by the court’s Pre-Trial Chamber.  That is a powerful tool that African States Parties could utilize better to diversify the investigations of the ICC beyond Africa.

African States Parties also could take the initiative to refer a non-African situation on State Party territory if new atrocity crimes erupt in Afghanistan, if North Korea again attacks South Korea resulting, for example, in civilian casualties, if renewed atrocities occur amidst the political turmoil of Bosnia and Herzegovina, or if the Syrian conflict dramatically spills over into Jordan unleashing war crimes and crimes against humanity.   The imminent activation of the crime of aggression under the Rome Statute also might give rise to new opportunities for African States Parties to refer situations of non-African aggression to the ICC Prosecutor provided such acts fall within the court’s jurisdiction.

Secondly, African governments could be far more effective in pressing the Security Council to refer, under U.N. Charter Chapter VII authority, obvious non-African situations for ICC investigation, such as Yemen or the ISIS-fueled horrors in Syria and Iraq.  Instead, African leaders have futilely sought to use the Security Council to shut down investigations of themselves under Article 16 of the Rome Statute.  The use of African diplomatic clout to press for Security Council referrals of non-African situations would have been and could still be far more productive.

Finally, the ICC could take an important step in reaching out to African governments more persuasively and effectively than it has managed in the past.  The ICC Presidency and ICC Prosecutor are highly competent interlocutors with governments.  But they also have day jobs to prosecute and judge, respectively, and to serve as administrators of large staffs.  The ICC Registrar is occupied, as he should be, administering the entire judicial institution.  The Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor tries its best to coordinate judicial cooperation and “external relations” for the OTP, but it appears that is not enough. The ICC needs a full-time and prominent diplomatic representative who will work directly with governments, the United Nations, the African Union, the European Union, and other stakeholders to understand their political concerns and articulate effectively with national leaders, in particular, the role of the ICC and why it is in the best interests of governments to support international criminal justice.  The ICC diplomat also should be tasked to enhance broader membership in the ICC, a daunting task but one that would help address the jurisdictional double standard often complained about by African leaders.   The fact that several permanent members of the Security Council and other powerhouse countries remain outside of the ICC demands a full court press to coax them inside the tent, and African governments need to see that such efforts are being made.

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About the Author

Mayer Brown/Robert A. Helman Professor of Law at Northwestern Pritzker School of Law, Director of the Center for International Human Rights at Northwestern University Pritzker School of Law, Former U.S. Ambassador at Large for War Crimes Issues (1997-2001)