By Tanja Altunjan and Dr. Aziz Epik
Tanja Altunjan is a Research Fellow and Dr. Aziz Epik is a Senior Research Fellow to the Chair for German and International Criminal Law, Criminal Procedure and Modern Legal History, Prof. Gerhard Werle, Humboldt-University, Berlin.
70 years after the International Military Tribunal passed its Nuremberg judgment, the International Criminal Court (ICC) – the first permanent institution for the prosecution of crimes under international law – is subject to intense criticism predominantly from African states. While the critical comments should not be brushed aside prematurely, ventures to leave the ICC are steps in the wrong direction. We will address some of the central points of criticism below and demonstrate that the allegations of neocolonialism and racism are exploited in order to create political agitation, obstructing the necessary discussion on reforms and possibilities for improvement.
Two and a half withdrawals
South Africa, Burundi, and The Gambia – these three African states have officially initiated the withdrawal process from the Rome Statute of the ICC. Their withdrawals will take effect in October and November 2017. It should be noted The Gambia’s newly elected president may retract the withdrawal (he has recently announced that The Gambia “will not leave” the ICC), but his prospect of assuming office is threatened by the current president’s refusal to concede defeat in the election. Other African states are reportedly reconsidering their relationship with the ICC. The President of the Philippines Rodrigo Duterte – currently under heavy criticism due to his violent campaign against persons presumed to be involved in drug use and trafficking – has already threatened to leave the ICC should the Office of the Prosecutor initiate preliminary examinations. Furthermore, Russia – which had signed but not ratified the Rome Statute – has withdrawn its signature from the Rome Statute just one day after the ICC Prosecutor stated that the events relating to Crimea and Eastern Ukraine amount to an international armed conflicts and a state of occupation.
The cases of the Philippines and especially Burundi illustrate a common problem associated with criticism of the ICC: states in which crimes under international law have been committed and which the Office of the Prosecutor is already focusing on are attempting to discredit the ICC. Instead of contributing to a discussion on necessary reforms, these states are aiming to shield those responsible from the jurisdiction of the ICC. Under these circumstances, the Court cannot and should not back down. On the contrary, the ICC has a responsibility towards victims and civil society to take action against the perpetrators and prevent impunity.
Focus on Africa?
The deterioration of the ICC’s relationship to African states seems grounded mainly on misunderstandings and misinformation. With respect to the fact that nine out of ten of the situations currently under investigation at the ICC are African, critics often omit that only two of these situations have been initiated by the Prosecutor. In all other cases, the situations were referred to the ICC by the UN Security Council or (in five instances) by the state itself. On this basis, it appears unsubstantiated to accuse the ICC of unfairly targeting African states and serving as a neocolonial instrument.
The criticism regarding the arrest warrant against the Sudanese President al-Bashir (see South Africa’s explanation for its withdrawal which relates to head of state immunity) should be directed at the UN Security Council instead of the ICC. The Security Council referred the situation to the Court but has failed to adequately support its attempts to build cases against the accused – a circumstance which the Prosecutor herself heavily criticized. The role and constitution of the UN Security Council are controversial and worthy of discussion. This issue, however, concerns international law in general and is not a specific problem of the ICC.
Moreover, the question arises as to whether there is a credible alternative. The ICC has jurisdiction over “the most serious crimes of concern to the international community as a whole” (Preamble of the ICC Statute, paras. 4 and 9). Due to the principle of complementarity, the states may prevent an ICC intervention by conducting national proceedings. The ICC is barred from exercising its jurisdiction when a state is genuinely investigating or prosecuting the same case. Consequently, in situations where the ICC takes action, the alternative to its interference would be impunity.
It should also be mentioned that despite fears that the withdrawals would spark a domino effect and lead to a mass exodus, no further African states have initiated withdrawals. African civil society, most notably Kofi Annan and the Africa Group for Justice and Accountability made up of senior African experts on international criminal law and human rights, has come forward urging the states to remain committed to the ICC. In a remarkable move, many African states have explicitly professed their continued support for the ICC and its mission in response to the withdrawals.
Is the ICC racist?
The former Gambian information minister’s allegation that the ICC is “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans” is flawed. The ICC Prosecutor Fatou Bensouda – who has been responsible for case selection and investigations since 2012 – is a Gambian citizen herself. Although most of the situations before the ICC had been opened before then, she was presumably able to influence these decisions in her role as Deputy Prosecutor. The judges and staff of the Court are diverse in their backgrounds, a considerable number of them being citizens of African states. The complex regulations concerning the selection of judges aim to ensure equitable geographical representation. Currently, four out of eighteen judges represent the group of African States, namely Kenya, Botswana, Nigeria, and the Democratic Republic of the Congo. Three judges each represent the Latin American and Caribbean States, the Asia-Pacific States, and the Eastern European States. Five judges come from the group of Western European and other States. While this may in fact be criticized as a slight overrepresentation in relation to the number of state parties, it should be noted that the selection process must also take into account several other factors such as gender balance, representation of legal systems, and experience in relevant areas of law.
Additionally, an aspect that is often overlooked is that the victims of these crimes are usually from the region and, in case of African situations before the ICC, often people of color themselves. It is their suffering but also their human dignity the international community recognizes by prosecuting the perpetrators and by condemning their criminal behavior.
Selectivity as a problem
A recurring problem, which has not been adequately resolved, is the ICC’s selectivity. USA, China, and Russia – three permanent members of the UN Security Council – are not member states of the Rome Statute and may therefore only indirectly be subject to the ICC’s jurisdiction. Additionally, many have criticized that Western member states are not targeted by the ICC even when there are sufficient indications that crimes under international law may have been committed. While it should be noted that the ICC operates on the basis of an international treaty and is dependent upon states’ accession, it goes without saying that this situation is far from ideal. Still, the ICC appears to have taken this criticism seriously: in the past few years, the Prosecutor has begun to focus on some of the most powerful states. She opened an investigation relating to the 2008 conflict between Georgia and Russia. Additionally, she initiated preliminary examinations dealing with the situations in the Ukraine and in Palestine as well as crimes allegedly committed by UK nationals in Iraq and the conduct of US soldiers interrogating prisoners in secret detention centers in Afghanistan, Poland, Romania, and Lithuania. In the latter situation, the opening of a full investigation is apparently imminent. This trend appears set to continue. Of course, it remains to be seen how the affected states will react to ICC investigations.
The ICC continues to deserve the international community’s support. While it is crucial for the ICC to engage in dialogue with African states and to take criticism from state parties seriously, not every argument is equally convincing. Where reforms are necessary, the Assembly of State Parties should provide a constructive forum for the critical states to voice their concerns in order to find effective solutions – a challenge it has recently lived up to. Especially in crises, withdrawals are steps in the wrong direction.