17 November 2016
Pretoria, South Africa – African states’ concerns with the International Criminal Court (ICC) are well publicised, but often badly understood and all too easily brushed aside. That must change; and the responsibility for changing it rests with African states themselves, the ICC and the international community at large.
The most effective way to resolve Africa’s concerns is not by withdrawing from the court, but through the mechanisms available to ICC members: the Assembly of States Parties (ASP) and the Rome Statute.
The 15th Session of the ASP is currently underway in The Hague. The past two months have been rocky for the ICC, and particularly its relationship with Africa. South Africa, the Gambia and Burundi recently submitted notices to withdraw from the ICC; and other African countries have indicated similar intentions.
Transnational problems such as the migration crisis have shown that insular thinking by states can be counter-productive in the long run. In the world of international criminal justice, this means that grievances ignored today are bound to become tomorrow’s larger, more pressing problems.
‘To ignore Africa’s concerns with the ICC is to risk undermining the future of the international criminal justice project as a whole,’ says Allan Ngari, a senior researcher at the Institute for Security Studies (ISS). At present, there are 34 African states parties to the Rome Statute; making it the largest geographic bloc.
The most notorious among these concerns – and often the elephant in the courtroom – is the matter of immunity for sitting heads of state. This is aggravated by the unequal approach to international justice at the global level. ‘The root of Africa’s problem with the ICC is the imbalanced geo-political configuration of the international community of states,’ says Ngari.
The link between the United Nations Security Council and the ICC has complicated the court’s work. Any of the permanent five members can stop a conflict from being investigated by the ICC – as was the case for Syria, when both China and Russia voted against referring the situation to the ICC.
‘Unless this root cause is addressed, it will explicitly continue to undermine international criminal justice – not just for Africa and the Rome Statute, but also beyond the ICC,’ says Ngari.
The ICC needs to be reformed from the inside out
The need for Security Council reform remains urgent. The role and the functioning of the ICC are at stake, as is the legitimacy of the UN.
But there are other ways to address concerns, and in the process – strengthen the ICC. For African states parties, the best shot at reforming the ICC is from the inside out – making use of the mechanisms contained in the Rome Statute.
Article 119 (2) allows for disputes relating to the Rome Statute to be settled between states, while according to Article 121, any state party may propose amendments to the Rome Statute. Such proposals might result in a review conference, where a two-thirds majority vote could see a proposal adopted.
The global south makes up a total of 81 states at the ASP. With support from this community, African states parties could succeed in amending the Rome Statute. ‘This, however, means that African states must lobby better and strategically,’ says Ottilia Anna Maunganidze, a senior researcher at the ISS. ‘They will need to engage in constructive dialogue and organise themselves to better seize opportunities like the ASP.’
At the same time, other states parties must take Africa’s concerns seriously, and acknowledge the risks of not doing so. The ICC and its various organs must consider the issue of diplomatic immunity openly and proactively, and prioritise cases from outside Africa.
The ICC isn’t perfect, but withdrawal is not the way
Delivering international criminal justice is an arduous, complex business. Differing legal systems make cooperation between states challenging and at times improbable; while a lack of political will can frustrate proceedings and, at worst, destroy the lives of witnesses and their families.
The Rome Statute was intended to make it easier to navigate these obstacles, by bringing clarity to matters like jurisdiction and cooperation.
By signing and ratifying the Rome Statute, states commit to working within a framework of cooperation that is streamlined, agreed on and clearly defined. Withdrawing means the delivery of justice becomes more complex, and therefore less likely.
In an ideal world, there would be no need for an ICC. But as long as regional and national courts are unable to do the job, and for as long as there are victims who need justice, the ICC is the only viable global court. States that take justice seriously must follow every avenue to address impunity.