Gambia's empty seat at the Assembly of States Parties at the Hague, The
Netherlands, on November 16, 2016. Three African countries - Gambia,
South Africa and Burundi - have recently announced their intention to
withdraw from the International Criminal Court. PHOTO | AFP
By Kwamchetsi Makokha
In Summary
- The withdrawals have not only punctured the momentum to turn the ICC into a universal court but also raised fears of other states following suit, as Russia, which signed the Rome Statute in 2000, withdrew its signature before it could ratify the treaty.
- An unprecedented open session on November 18 by the management body of the ASP, known as the bureau, focused on the relationship between Africa and the ICC under the theme “Resuming dialogue to win the fight against impunity.”
- African envoys claimed that the United Nations Security Council was exercising double standards in referring cases to the ICC while some of its members remained outside the Rome Statute. The US, Russia and China are not states parties to the Rome Statute.
Envoys from African nations have put the International
Criminal Court in the dock over claims of bias and unfair treatment in
an attempt to explain treaty withdrawals by South Africa, Burundi and
Gambia.
The three shock withdrawals from the Rome Statute, delivered
through notices to the United Nations Secretary-General last month,
inflected conversations at the 10-day annual Assembly of States Parties,
which ended at The Hague on Thursday.
The withdrawals have not only punctured the momentum to turn the
ICC into a universal court but also raised fears of other states
following suit, as Russia, which signed the Rome Statute in 2000,
withdrew its signature before it could ratify the treaty.
An unprecedented open session on November 18 by the management
body of the ASP, known as the bureau, focused on the relationship
between Africa and the ICC under the theme “Resuming dialogue to win the
fight against impunity.”
A motley 30 diplomats, attorneys-general, justice ministers and
civil society activists argued their case during the three-hour session
at the World Forum, building a broad and shaky consensus on the need for
dialogue to achieve reversals on the three withdrawals while averting
future treaty walkouts.
South Africa, the first country to serve notice of withdrawal on
the UN Secretary-General, appeared to soften its stance after Justice
Minister Tshililo Michael Masutha said: “We have no reason to celebrate
our decision to withdraw from the Rome Statute.” Hours after visiting
the ICC President Silvia Fernández de Gurmendi, he explained that South
Africa was struggling to strike the right balance between peace and
ending impunity.
In March, the High Court and Court of Appeals in South Africa
ruled that the government was wrong in failing to arrest Sudanese
President Omar al Bashir when he attended an AU summit in Johannesburg
in 2015. A third legal battle was looming at the South African
Constitutional Court after the government appealed the court’s decision,
but withdrew it after pulling out of the ICC.
Altar of peace
Uganda’s Attorney-General William Byaruhanga said that justice should not be sacrificed at the altar of peace, and vice versa.
The decision to issue an arrest warrant for President Bashir in
February 2009 marked a turning point in ICC-Africa relations, with many
countries on the continent being cited for failing to execute the
warrant of arrest against him.
Burundi’s ambassador to The Hague Vestine Nahimana, complained
that the ICC had launched investigations into atrocity crimes in the
country without giving the government first bite at the cherry. In
April, ICC Prosecutor Fatou Bensouda announced that she was launching a
preliminary examination into Burundi following reports of atrocities in
the conflict following the decision by President Pierre Nkurunzinza to
seek a third term in office.
“Burundi and some African countries believe that the ICC has not
given a lot of attention to the principle of complementarity. A
preliminary examination should not be an opportunity to obtain
information of complementarity,” she said.
READ: ICC to probe deadly violence in Burundi
Selective justice
Some African states have asked the ICC to investigate crimes in
their territories, and the fact that they were complaining about the
court signalled a problem.
No representative of the Gambia, home of Ms Bensouda, spoke to
explain the incongruous reasons for its withdrawal from the Rome Statute
— reported as the ICC’s failure to arrest former British Prime Minister
Tony Blair for crimes against humanity.
“Africans believe that there is selective justice at the ICC,”
said Toni Aidoo, the Ghanaian ambassador to the Netherlands who
co-ordinates the continent’s member states of the ICC.
Korir Sing’oei, legal advisor to Kenya’s Deputy President
William Ruto, said although the country was a firm believer in the
international system of justice, its experience as a situation country
had shaken its faith in the court.
The cases for Mr Ruto and journalist Joshua arap Sang at the ICC
were terminated in April for lack of evidence, but the court noted what
it termed as “intolerable levels of witness interference and political
meddling.”
Charges against President Uhuru Kenyatta and former head of the
civil service Francis Muthaura were withdrawn after the Prosecutor
failed to obtain co-operation from the government in collecting
evidence.
Kenya’s was still aggrieved about what Dr Sing’oei termed as
“subcontracted investigations and use of partisan intermediaries to
conduct investigations, when no exculpatory facts were considered”.
He accused the court of carrying out politically motivated
investigations in charging six individuals for widespread violence
following the election in 2007.
Imbalance of power relations
Although the ICC, like the UN, has gone where it is most needed,
its traditional defenders conceded that its enthusiasm to investigate
cases in Africa was not matched by similar action elsewhere.
African envoys claimed that the United Nations Security Council
was exercising double standards in referring cases to the ICC while some
of its members remained outside the Rome Statute. The US, Russia and
China are not states parties to the Rome Statute.
Njonjo Mue, programme advisor for the Kenyans for Peace with
Truth and Justice coalition, argued that the real issue was the not the
court itself but the imbalance of power relations that allowed
non-member states to refer cases to the ICC, and failing to refer
deserving ones like Syria.
“We need to direct firepower at the real source of the problem.
We should not treat a brain tumour by amputating a leg,” he said, adding
that the conflict ought to be referred to the International Court of
Justice.
“All Africans have at one point or another in our lives been
insulted, discriminated against or victimised because of the colour of
our skin… but when this has happened, we have not walked away from the
problem. We have confronted it as members of the human family. All
African ICC member states must do the same,” he added.
Perceptions of bias were conceded by a cross-section of
diplomats representing European and South American nations as well as
civil society leaders from across the globe, who also acknowledged that
the Rome Statute system was not perfect but called for dialogue on
amendments.
Envoys from African nations that traditionally support the ICC —
Nigeria, Senegal, Mali, Ghana and Tanzania - called on states that had
withdrawn from the Rome Statute to reconsider their decision.
Botswana Attorney-General Athalia Molokome called for continued
dialogue on how to end impunity, which she said was the collective
responsibility of all nations, not just Africa.
Overweening influence
Diplomats from Francophone countries in Africa argued that 20
countries from the continent that are not members of the ICC were
wielding overweening influence over the 34 that had ratified the treaty
to withdraw from it.
At the opening of the 15th ASP, keynote speaker Prince Zeid al
Hussein, who is the UN High Commissioner for Human Rights, dared states
that were threatening to leave the ICC to hasten their exit.
The decision to withdraw from the Rome Statute, said AU senior
legal officer Adewale Iyanda, was a manifestation of growing impatience
by some members with the lack of consideration of some of their
concerns.
Civil society leaders from around the continent responded; Mr
Mue asked: “Is it that the ICC targets African states or African victims
are privileged to be able to approach a court they helped to create
when justice is not available in their own countries?”
Sentiments against adopting a soft approach to the African
states’ demands were expressed by the EU, Japan, Australia, Argentina,
Mexico, South Korea and Venezuela, whose ambassadors asked withdrawing
nations to reconsider their decision.
“Not listened to and humiliated”
However, other countries could follow, said Sidiki Kaba, the
president of the ASP, in an interview with Journalists for Justice. In
his position, he does not want to speculate on how many and which
countries they may be.
Mr Kaba is the Minister of Justice in his home country, Senegal.
He said that there are Africans who feel “not listened to and
humiliated” by the ICC, which they perceive as “discriminatory and
[serving up] selective justice.”
All suspects wanted by the Europe-based court are African, and
many Africans perceive the ICC as “justice by the white,” he added.
Costa Rica’s ambassador to The Hague, Sergio Gerardo Ugalde
GodÃnez, warned against engaging in destructive criticism that would
erode the court, and instead called on nations to stand together to do
the “right thing.”
“The international community cannot start a fire and then say it
wants to be the fire brigade,” said Belgian ambassador Chris Hoornaert,
who also faulted African states for not using existing channels to
propose amendments to the Rome Statute.
Chino Obiagwu of the Nigerian Coalition for the International
Criminal Court said there was a need to improve fairness in the
international political order. “What do these human beings want? Should
they wait until we have fairness in the world order to get justice?” he
asked.
Immunity of heads of state
An African diplomat with knowledge of behind-the-scenes
consultations, who declined to be named because he is not authorised to
speak on behalf of his mission, said the withdrawals were only a red
herring for the real demand — immunity for heads of state.
Some African states have been demanding a pound of flesh, close
to the heart of the ICC, in the form of immunity from prosecution for
sitting heads of state and senior government officials. Article 27 of
the Rome Statute states that official capacity shall not exempt a person
from criminal responsibility and is a critical pillar of the court’s
founding treaty.
One principle is not negotiable, said Mr Kaba, a fundamental
principle that all states parties to the Rome Statute have subscribed to
— there is no immunity for the highest political and military leaders.
In an impassioned five-minute closing oration the president
concluded: “It is important not to play politics with justice,
especially with issues that touch on humanity. We can transform a crisis
into an opportunity if we are committed. Let us get back to the spirit
of the Rome Statute.” He referred the discussion to a meeting of the
ASP’s bureau for further debate.
Additional reporting by Thomas Verfuss, Journalists for Justice
No comments :
Post a Comment