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From Brexit to African ICC Exit: A Dangerous Trend

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Burundi, South Africa, and the Gambia are not violating international law merely by announcing their withdrawal from the Rome Statute that created the International Criminal Court. In accordance with Article 127 of the Rome Statute, they have every right to go.

Contrary to what some commentators seem to believe, the ICC and the Rome Statute system will not disappear because of some withdrawals. The Statute can still function with 121 states or even less. Think about it this way: in 2003, I was appointed as ICC Prosecutor by 78 states. In those days, the Bush Administration was embarked on military operations in Iraq ignoring the position of the majority of the UN Security Council members, authorizing the use of torture, campaigning against the International Criminal Court and threatening states party of the Rome Statute with economic sanctions for not providing immunity for US troops. Despite those conditions, less than 100 states parties were able to provide the cooperation and support that the Court needed to function. Thirteen years later the system developed by the Rome Statute is a reality, part of international law’s landscape. Its existence is not at risk—its relevance, as with the relevance of international law to manage conflicts, is in question. Just Security produced three important opinions.

Justice Richard Goldstone explained that under South Africa’s national law, Zuma’s attempt at withdrawal defies the domestic rule of law and the country’s constitution. What is more, to justify its withdrawal, the Zuma Administration is using, on the international scene, the same argument that it lost before the South African courts in the case about its failure to arrest indicted President Bashir.

Professor Alex Whiting exposed that the claim of an “ICC African bias” obscures the real issue: to ensure accountability universally. He explained that as of the 9 investigations on the African continent, 8 were requested by African states, 6 African states referred their own situation to the ICC, and African states voted in support of the UN Security Council referrals on Darfur and Libya. Kenya was the only situation in Africa opened independently by the Court. What’s more, the Comoros and Gabon requested the ICC’s intervention. Staying true to its legal mandate, the ICC is involved in these African cases for one principal reason: because massive crimes occurred while national authorities conducted no investigations.

Ambassador David Scheffer exposed further the hypocrisy of the African bias arguments, by explaining that African states parties could refer situations to the ICC outside the continent like Afghanistan or could be far more effective in pressing the Security Council to refer obvious non-states parties and non-African situations for an ICC investigation, such as Yemen, Syria, and Iraq—but they do not and have not.

The African bias is a cover up argument like the denial of the Holocaust. It should not be considered as an argument but rather as an alibi to ignore crimes and it should be exposed as such.

The African bias discussion is covering up firstly that there are currently African heads of states planning or committing massive atrocities to retain power; secondly that the ICC is currently the only institution designed to be effective at preventing and punishing international crimes; and thirdly that the international legal order is going backwards.

Firstly, an indicted President Bashir continues to commit Genocide in Darfur and is also attacking civilians in Kordofan. And just like Bashir, there are many African leaders who are using systematic violence to stay in power.

The decision of Burundi’s President Pierre Nkurunziza to remain as President for a third term and to leave the ICC exposes his will to have a free hand to keep committing crimes against humanity, and possibly Genocide, with the goal of staying in power. The President of the Burundian Senate has been proposing to “pulverize and exterminate” rebels and to spray “cockroaches” —the very same word used to dehumanize the Tutsi during the 1994 Rwanda genocide.

Yahya Jammeh has been Gambia’s President since 1994 enforcing a zero tolerance policy toward dissent. He decided to be reelected again, and there are very serious allegations against him of grave human rights violations that need to be assessed to determine whether they fall within the jurisdiction of the Court.

Secondly, without the ICC, who will protect the African victims when African governments attack them? The situation in Burundi is showing how difficult it is for international organizations to stop the crimes.

The African Union’s Constitutive Act adopted in July 2000 established the connections between such atrocities and the economic prospects of people in Africa. It stated that: “the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and integration agenda.”

And last December, the African Union (AU) tried to implement Article 4 (h) of the Constitutive Act in Burundi: “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” The AU gave President Nkurunziza 96 hours to accept an AU force, but the Burundian Government simply rejected the ultimatum. Challenged by Burundi, the AU leaders reversed the decision and canceled the request. Instead of protecting the victims, the AU decided to protect the perpetrators. The AU’s mediation effort led by President Museveni, Uganda’s President since 1986, was also dismissed.

African leaders have learned that not only the AU but also the UN Security Council cannot be relied on to act forcefully. A year ago, the British Ambassador, as the President of the UN Security Council, warned of a “possible genocide” in Burundi as the international body agreed on a resolution paving the way for a peacekeeping deployment. But, in January 2016, the Head of the UN Peacekeepers declared that the UN is ill-prepared to control atrocities in the country.

Since April 2016, 210,000 new refugees have escaped from Burundi into neighboring countries, and the world looked away as blood flowed. But in the same month, the ICC Prosecutor Fatou Bensouda opened a preliminary examination into the crimes committed there. As national leaders there and elsewhere have learned, the ICC is the only institution with a mandate—and a will—to prevent and punish these terrible crimes. That is why Burundi is now leaving the ICC to have free hands to annihilate the “cockroaches.”

Who will defend the Tutsi victims in Burundi if the government continues attacking them? Make no mistake—the alternative to legal protection in this context is war.

The Burundian Government is now accusing Rwanda of using proxy forces to protect the Tutsi population, and if the crimes continue the conflict could escalate as has happened before. The previous Rwandan intervention to protect Tutsis in the Democratic Republic of Congo at the end of the 20th Century triggered two wars on the continent, drew in dozens of African countries, and resulted in the death of millions of people.

On the other hand, Gabon presents a hopeful example of how the ICC is helping African countries to control violence. Opposition figures said that more than 50 people were killed in Gabon on August 31 after Ali Bongo, the son of Omar Bongo who ruled for 41 years until his death in 2009, was declared the election’s winner by a tiny margin. Demonstrators set the Parliament ablaze and clashed with the police who arrested over a thousand individuals.

Late last month, the Government referred its own situation to the ICC. The lawyer of Jean Ping, the opposition leader, said that they would cooperate with the ICC to identify the crimes and the criminals. Both sides have accepted the authority of the ICC to handle the situation, and the ICC investigation could serve as a peaceful mechanism to prevent both sides from escalating the violence.

Thirdly, the 21st Century needs national leaders with global vision. There are opportunities for these leaders to integrate national and international institutions to protect citizens of the world.

In 1998, on signing the Rome Statute Nelson Mandela said: “Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimized, had there been an effectively functioning International Criminal Court.”

President Zuma has strayed far from Mandela’s footsteps. He has showed little respect for legal limits at home; so it not surprising that he shows no respect for the rule of law internationally. For example the South African Constitutional Court said that he breached the rule of law by ignoring an order to repay some of $16 million in state funds spent on renovating his private home. With that approach to legal rules, he is now inviting African leaders to tear down the ICC’s effective limits. George Kegoro of the Kenya Human Rights Commission said, “the South African leadership is marching the country to a legal wilderness, where South Africa will be accountable for nothing.”

This is not just an African problem, and it would be wrong to frame it as such. Over the past few years, nationalism has been growing across all the continents. Brexit was the most recent and vivid example. Venezuela withdrew from the Inter American Human Rights Court in 2013, and now three countries are walking away from the Rome Statute. Technological evolution without global institutions will send humanity back to tribalism. ISIS is showing that tribalism promoted by social media in a globalized world can destroy national and international human rights.

Legal experts should assist national leaders to develop new global policies integrating security, political and legal concerns. We should learn from the past. During WWII, Goebbels insisted on the Nazi’s sovereign right as a state to decide on the fate of its Jewish, “Gypsies” and anarchist citizens. During those days two Polish Jewish lawyers, Raphael Lemkin and Hersch Lauterpach, were able to move beyond the debate about state sovereignty and had the global vision to develop and institutionalize two new concepts: genocide and crimes against humanity.

Just Security has a role to play in this. It is platforms like this where rigorous analysis can help legal scholars and experts develop a global vision that is both principled and pragmatic and that strives to implement accountability universally.

[Editor’s Note: For more on this topic, read our broader coverage of the issues.]

Image: Rescue symbol E002: Emergency exit, by Maxxl – Wiki Commons

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About the Author

First Chief Prosecutor of the International Criminal Court (2003-2012), Senior Fellow at the Carr Center for Human Rights Policy at Harvard Kennedy School, CEO at Moreno Ocampo LLC Follow him on Twitter (@MorenoOcampo1).