THINK AGAIN: Where does the ICC go from here?

2016-11-02

It’s been a long, hard couple of weeks for the International Criminal Court (ICC). The trouble began with the announcement that Burundi would exit the court; it got worse when news broke that South Africa would follow suit; and, when the Gambia became the third African country to announce its intention to withdraw, it seemed that the ICC might face a fully fledged African revolt.

It’s not quite as bad as all that. Along with strong backing from civil society, the ICC is still supported by many African governments, especially in west Africa. Nonetheless, the international court is facing an unprecedented challenge to its credibility and legitimacy. How it responds will determine its survival in future.

The ICC’s long-term future requires it to allocate more resources to non-African situations

For the court and its backers, it is time to move beyond blame and recrimination and focus on what comes next. Where does the ICC go from here? And what steps can it take to get there? If the court is to remain a force for justice, then some things need to change. Here are some suggestions.

1. Get some non-African cases, and quickly

By far the most damaging argument is that the ICC is biased against Africans. While the structural factors that create this perceived bias are well understood, this does not necessarily excuse them. As the old English ruling goes: ‘Not only must justice be done; it must also be seen to be done.’ The simple statistic that only one non-African situation (Georgia) has been formally investigated in the ICC’s 14-year existence is damning in the extreme, regardless of the court’s constraints.

There is an obvious fix. Get some non-African cases. A first step is to move forward with the Georgia case. The ICC opened a formal investigation in January 2016, eight years after the preliminary examination started.

A second is to put more energy into other non-African cases which are in the ICC’s preliminary examinations stage. These include Afghanistan, Colombia, Iraq/United Kingdom, Palestine and Ukraine. News that a full investigation in Afghanistan may soon be announced is encouraging.

Of course, this is easier said than done. The ICC is already extremely busy, and operates on limited resources. But it is now crucial to the court’s long-term existence that it allocates more of those resources to non-African situations, and makes sure that it is seen to be doing so.

2. Tackle the question of diplomatic immunity

South Africa’s instrument of withdrawal outlined the official reasons for its dissatisfaction. Chief among them was the conflict between diplomatic immunity, under customary international law, and the ICC’s requirement to arrest sitting heads of state facing charges in The Hague.

The visit of Sudanese President Omar al-Bashir to South Africa in 2015 was the test case. Despite local courts ruling to the contrary, South Africa’s executive branch maintain that diplomatic immunity trumps the ICC’s arrest warrant.

This question must be urgently clarified in international law and particularly among states parties to the Rome Statute. As it stands, the potential confusion provides a loophole where heads of state are concerned. For South Africa, this loophole provided convenient legal cover for its withdrawal, even though the decision was largely motivated by political rather than legal factors.

Politics will always be part of the ICC’s daily business

Countries discussed diplomatic immunities at last year’s Assembly of States Parties (ASP) to the Rome Statute, but South Africa’s view that the Statute should be amended was rejected by many other member states. Efforts since then by South Africa to persuade the ASP to consider the revision were also rejected. This was a mistake. At the upcoming ASP in November, it should be back on the agenda.

States parties could also consider approaching the International Court of Justice to make a definitive ruling on immunity. Settling the question once and for all – regardless of the result – can prevent the ambiguity around the issue being used by states to flaunt their Rome Statute obligations.

3. Work with the African bloc to keep them on board

No African country has actually exited the ICC yet, and it will be a year at least before Burundi and South Africa – both of which have formally notified the UN Secretary-General of their decisions to withdraw – are no longer parties to the Rome Statute. Until then, Burundi and South Africa are still bound by the Statute.

Besides, it is far from clear whether South Africa’s instrument of withdrawal is lawful, as Parliament did not approve it before it was lodged. The Democratic Alliance, South Africa’s official opposition party, and the Council for the Advancement of the South African Constitution, are challenging this in court. If they win, the instrument of withdrawal would have to be revoked.

In other words, despite the doom-and-gloom headlines, all 34 African states parties remain members. This means that the ASP, the ICC and other relevant structures still have time to persuade unhappy members to change their decision. This requires canny diplomacy – not just from the Office of the Prosecutor – but chiefly from the ICC Presidency, the president of the ASP, and other states parties.

It is vital that other ASP members take African concerns seriously, and engage with them accordingly. This is particularly true for developing countries, whose voice is more powerful in this argument than that of European powers.

The point is not only to win over the court’s African enemies, but to make sure that the African countries which remain in favour of the ICC – like Botswana, Mauritius, Nigeria, Senegal, Seychelles and Tanzania, among others – continue to do so.

The ICC could have been more pragmatic in its approach to prosecuting sitting heads of state

Compromise may be required and the diplomatic immunity question should be revisited, but that might be a price worth paying to win back the support of an entire continent.

4. Communicate better

It has been three weeks since Burundi dropped the first withdrawal bombshell, and we have yet to hear any public reaction from the chief prosecutor, Fatou Bensouda. This is understandable: it is not her role to get embroiled in highly politicised debates. While political considerations cannot influence decisions to prosecute, Bensouda can help navigate the ICC through the choppy political waters it currently finds itself in.

Like it or not, the court was created through a political treaty process dominated by member state interests. Politics will always be part of the ICC’s daily business. As chief prosecutor, Bensouda is the public face of the ICC and well placed to defend the institution. To succeed though, she needs active and ongoing support from others in the ICC.

Both the president of the ASP and the president of the ICC have recently urged member states to stay and rebuild the court. These statements are important, but the defence of the ICC from within has generally not been strong enough, leaving Burundi, the Gambia and South Africa in pole position to dictate the narrative in Africa – a narrative that is too often cloaked in half-truths and misunderstandings.

That these misunderstandings have become accepted as truth across so much of the African continent is a communications failure on the part of the ICC.

But this can change, with an informed communication strategy featuring prominent ICC figures tasked with diplomacy and ‘external relations’. ASP President, Sidiki Kaba, and First Vice-President of the ICC, Joyce Aluoch, are both African. Kaba is the Senegalese Minister of Justice and Aluoch is from Kenya; they have legitimacy that people from outside Africa lack on these issues.

Unfortunately, it is not enough anymore for the ICC to put its head down and get the job done. It is imperative that the court do a better job of promoting itself and what it does, and of defending itself against public attacks.

5. Be more strategic when prosecuting sitting heads of state

The ICC’s problems in Africa really began when it started going after sitting heads of state. Bashir was the first, and Kenya’s Uhuru Kenyatta the second (although he was charged before taking office). It’s no surprise that Bashir’s case is at the root of South Africa’s decision to withdraw, while Kenyatta has overseen a remarkably effective continent-wide campaign to discredit the ICC.

Have we fully considered the practical implications of prosecuting sitting heads of state?

On a case by case basis, going after al-Bashir and Kenyatta appear to be good decisions. Both leaders were allegedly complicit in serious international crimes, and deserve their day in court. And this, after all, is what the ICC was created to achieve – accountability at the very highest levels.

Equally, there is no doubt that these prosecutions badly damaged the ICC’s reputation in Africa – and may potentially derail other African cases, ultimately doing more harm than good.

Prosecuting heads of state was always going to be controversial, but perhaps the ICC could have been more pragmatic in its approach. ‘Where we are now is a demonstration that the international community, including members of the Rome Statute, hadn’t fully thought through the practical implications of prosecuting sitting heads of state,’ says Anton du Plessis, Executive Director of the Institute for Security Studies.

‘Of course, it’s great in theory, morally right, and lies at the heart of the ICC’s mission. But this is tricky territory for a new court trying to push legal frontiers on the most complex and controversial issues of international criminal law. There is something to be said for sequencing. Not immunity, but being more strategic about timing.

‘In retrospect, it might have been a better strategy to be more patient and focus on some of the other suspects first,’ says du Plessis.

It has been a bruising few weeks for the ICC on the African continent. But it’s not too late for the court to restore its damaged reputation and win back African allies, who were once among its most enthusiastic supporters.

Simon Allison, ISS consultant

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