African delegations attending the ongoing annual meeting of the Assembly of States Parties of the International Criminal Court (ICC) in The Hague have been voicing serious concerns over their increasingly turbulent relationship with the ICC. No one should underestimate the crisis unfolding among States Parties of the Rome Statute as they address the criticism of many African nations and respond to the planned withdrawal from the Court by three of them—South Africa, Burundi, and the Gambia.

Two of the primary complaints lodged by African States Parties are (1) how the ICC Prosecutor undertakes her proprio motu powers to independently launch investigations and the role complementarity should play in that process, and (2) the ICC’s seeming indifference to African priorities to negotiate peace agreements that may require the participation of African heads of state or high ministers who have been charged by the Prosecutor and are targets of arrest warrants. Other widely pronounced concerns are the alleged bias of the Security Council to refer only African situations to the ICC, the absence of many major powers from ICC membership, and the African-centric docket of the Court.

The common refrain of all delegates is the willingness to have intensified discussions about African concerns. Some non-African delegations have appealed for the Africans to advance concrete proposals of what they believe is required to resolve the problems, including amendments to the ICC’s constitutional documents. Those proposals have been few in number so far, which has fueled grumbling about “what to do.”
I identified in my essay of October 24 in Just Security several initiatives that African nations could take to broaden the ICC’s situations under investigation and prosecution beyond the African continent. I elaborated further on these options in ICCForum. Here I want to advance two more proposals keyed to the above-stated major concerns expressed by the African delegations before the Assembly of States Parties.

First, delegates are focusing on Article 97 of the Rome Statute, which reads as follows:

Article 97

Where a State Party receives a request under this Part [IX] in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

African States complain that Article 97 consultations have not been taken seriously or, when undertaken, have not been sufficient to resolve their own concerns about the work of the Prosecutor in their countries. Each situation, of course, has its unique characteristics and the Prosecutor has to navigate stormy terrain to seek information and ascertain the truth among disputed accounts. She likely would disagree about how some governments are portraying her efforts to perform her mandate under the Rome Statute.

However, in the spirit of Article 97, the Prosecutor could consider developing a fresh protocol, in consultation with African and other State Party governments, to establish refined procedures for how the Prosecutor undertakes exploratory steps prior to a preliminary examination of a situation approved by the Pre-Trial Chamber under Article 15. Such a “Protocol on Procedures Leading to a Preliminary Examination” could include such steps as (1) seeking to hold meaningful discussions with the target government about the alleged atrocity crimes on its territory; (2) protecting the safety and privacy of witnesses who agree to provide information to the Prosecutor but allowing the government to respond to allegations made by such witnesses; (3) respecting good faith efforts by the government to address atrocity crimes domestically under the principle of complementarity (4) taking the requisite time to fully understand any unique circumstances that may have led to the violence under scrutiny, and (5) acknowledging the importance of any peace talks underway to end armed conflict.

A government determined to obstruct the Prosecutor’s efforts to ascertain accurate information about alleged atrocity crimes should not see in such a protocol the means by which to do so. But the African States’ anger seems to stem from their own perceptions of being undervalued and even disrespected in the work of the ICC. My point here is to suggest that a reasonable set of guidelines for inquiries preceding formal preliminary examination by the Prosecutor might bridge misunderstandings and lead to more fruitful outcomes for the cause of justice.

My second proposal concerns Article 98(2) of the Rome Statute, which reads:

“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”

The origins of Article 98(2) reach back to the American position early in the negotiations of the Rome Statute that status of forces agreements, embodying criminal procedures regarding military personnel, remain fully enforceable under the new treaty. Over the years the language evolved into the text of Article 98(2).

The integrity of Article 98(2) was undermined during the George W. Bush Administration (2001-2008) when it was invoked to negotiate, at times under considerable political pressure, over 100 such bilateral non-surrender agreements, or bilateral immunity agreements, with allies and friends globally to ensure that no American citizens would be surrendered to the ICC. The Bush Administration, in its opposition to the ICC, sought to insulate all American citizens from its jurisdiction wherever they might be in the world, and to do so with such non-surrender agreements. However, that was an overreach of the provision’s wording, which is designed to protect the government personnel (military and civilian) of the “sending State.” The Bush experience left a stain on Article 98(2) that will not be easy to wash away.

Nonetheless, concerned African governments could invoke Article 98(2) to negotiate a multilateral treaty among themselves to prohibit the surrender of a charged head of state or senior minister to the ICC provided any such individual is indispensable to the pursuit of a peace settlement for an ongoing conflict in Africa. Since the importance of such leaders to the achievement of peace is the gravamen of the African complaint expressed before the Assembly of States Parties, then such a non-surrender agreement would address that particular concern. Non-African States Parties would not find suitable a multilateral treaty in Africa that effectively immunizes heads of state and senior ministers under all circumstances, as that would directly contravene Article 27 of the Rome Statute. Rather, the aim should be to narrowly circumscribe such non-surrender protection for those individual leaders who are playing a vital role in peace negotiations on the continent.

This proposal may strike some as undermining Article 27’s strong commitment to ending impunity by the highest officials for the commission of atrocity crimes. In some respects, that would be true. Normally, States Parties who invoke head of state immunity and the protection afforded by Article 98(1) must bow to the authority of Article 27 if the individual in question has been charged by the ICC and subject to an ICC arrest warrant. Non-party States continue to exercise unfettered respect for head of state immunity. But for States Parties, participation in the treaty regime of the Rome Statute has consequences.

However, invoking Article 98(2) to enable African States Parties to address one of their major concerns about the Rome Statute would not immunize African leaders from investigation and arrest warrants under the jurisdiction of the ICC. Such leaders would still be subject to being charged. Also, in the future the protection afforded by the non-surrender agreement would be extinguished when the peace agreement for which any such charged leader proved so important is implemented. The indictment would follow charged leaders beyond their government service. But their actual surrender to the ICC would be made more difficult for reasons that African nations believe are worth protecting, namely the search for peace that will end the conflict, which so often unleashes atrocity crimes.

Of course, one must recognize that charged leaders taking advantage of the non-surrender agreement might see it to their advantage to prolong the conflict so as to preserve their “indispensable” role in the peace process they in fact are imperiling. If that occurs, then we should respect the judgment of African governments—which have professed their dedication to international justice—to deprive such charged leaders of being identified as indispensable to the peace process and thus render them ineligible for protection under the non-surrender agreement. Also, African leaders always could travel to the capital of the charged head of state or senior minister to talk peace and avoid activating the non-surrender agreement. One does not hear often of African peacemakers flying to Khartoum to draw upon the influence and perceived wisdom of fugitive President Omar al-Bashir. He also could be consulted by SKYPE anytime peace negotiators need his advice.

In short, the non-surrender agreement would be a reasonable compromise to ensure that African States Parties remain in the ICC and continue to be strong supporters of its work. The same spirit of compromise would be reflected in a fresh protocol of procedures for the Prosecutor’s early inquiries into alleged atrocity crimes in the territory of a State Party. Neither of these proposals would require any amendment to the Rome Statute or any of its constitutive documents.

Photo: Getty