Side Event: “Draft Convention on the Prevention and Punishment of Crimes Against Humanity” (hosted by the Federal Republic of Germany and the Republic of Korea)

Overview by Jill Baehring, Research Associate PILPG-NL

Speakers:

1. Sean Murphy, Moderator, Special Rapporteur on Crimes Against Humanity, International Law Commission

2. Hassan Bubacar Jallow, Former Prosecutor, International Criminal Tribunal for Rwanda

3. Judge O-Gon Kwon, International Criminal Tribunal for the former Yugoslavia

4. Solomon Sacco, Senior Legal Advisor, Amnesty International

5. Leila Nadya Sadat, Director, Whitney R. Harris World Law Institute and Chair of the Crimes Against Humanity Initiative, Washington University School of Law

6. Judge Christine van den Wyngaert, International Criminal Court

 
Highlights:

• Sean Murphy, UN Special Rapporteur on Crimes Against Humanity, said that hopes to submit a final version of the Draft Resolution to the United Nations General Assembly in 2019 or 2020.

• Solomon Sacco, Senior Legal Advisor to Amnesty International challenged the notion that the Rome Statute provides the best definition of Crimes Against Humanity, and that the Statute does not necessarily reflect the progress that has been made in the last 15 years.

The side event was opened by Sean Murphy, UN Special Rapporteur on Crimes Against Humanity. He outlined the development and progress of the Draft Convention, which was commenced as a project in 2014. He pointed out that about one half of the world’s States has no national law on Crimes Against Humanity, including the U.S. Even those who do, do not necessarily mirror the Rome Statute’s provisions. For instance, in most cases States do not exercise universal jurisdiction, and many national laws do not allow jurisdiction over an individual if the case does not have any connection to the respective country. He concluded that the Draft Resolution will be able to create greater accountability in this regard. He hopes to submit a final version of the Draft Resolution to the United Nations General Assembly in 2019 or 2020.

Sean Murphy outlined the 10 prospective articles as following:

1) Statement of Purpose of the Convention
2) General obligation of States to prevent and punish Crimes Against Humanity
3) Definition of the Crime, which has been taken from Art. 7 of the Rome Statute
4) The Obligation of States to prevent Crimes Against Humanity and to adopt judicial and other preventive measures.
5) Criminalization at national level, military and civilian command responsibility
6) Establishment of national jurisdiction
7) The duty of States to conduct an prompt and impartial investigation
8) The duty to take an offender into custody as well as cooperation with other States
9) The duty to conduct an investigation as soon as an offender is present in the State’s territory, transfer to other jurisdictions
10) Fair treatment of the offender

Judge Richard Goldstone, Former Chief Prosecutor of the ICTY and ICTR, added that Crimes Against Humanity are the only important war crime without convention. Judge O-Gon Kwon, Former Judge at the ICTY, emphasized that the Draft Convention will not undermine the universality of the Rome Statute. Moreover, it will complement the primary mission of the ICC. He called the Draft Convention an important step in the fight for universality and against impunity.

Solomon Sacco, Senior Legal Advisor to Amnesty International, said that Amnesty International welcomes the initiative and that the Draft Convention will consolidate State’s obligations to investigate Crimes Against Humanity at a national level, which has the potential to act as important trigger to fight against impunity. He encouraged NGOs and civil society to engage with the further process. He pointed out that the Statute of Limitations as set out in the Draft Convention opens the possibility to enable more accountability. Regarding the statement of rights of an offender, he emphasized that a system of international justice is not credible if it lacks the fair treatment of offenders. He also noted that Amnesty International would have preferred a more progressive approach regarding universal jurisdiction. He challenged the notion that the Rome Statute provides the best definition of Crimes Against Humanity, and that the Statute does not necessarily reflect the progress that has been made in the last 15 years.

ICC Judge Christine van den Wyngaert said that the Draft Convention goes well beyond the Rome Statute, especially when it comes to the responsibility to cooperate. This might have a big impact on the fight against impunity. She pointed out that the development of international law was a slow process, but that there has been a rapid development since the end of the Second World War. While the law now knows clear definitions of War Crimes and Genocide, Crimes Against Humanity had not been domesticated by States in the same way, which is why the Draft Convention will be a big step forward.

Leila Nadya Sadat, Director of the Whitney R. Harris World Law Institute and Chair of the Crimes Against Humanity Initiative of the Washington School of Law, agreed that there was a huge development in international law. She pointed out that the development of the Draft Convention would not have been possible without the Rome Statute. She congratulated Sean Murphy on his extraordinary work and highlighted that the obligation to prevent Crimes Against Humanity were a big innovation. Responding to Solomon Sacco, she said that there was a push and pull between international law’s progressive development and codification.

In the questions, it was highlighted once again that even among the States Parties to the Rome Statute, less than half had adapted their domestic law. It was expressed that the Draft Convention will help to contribute to universality and complementarity.

Side Event: “Activation of the Kampala Amendments on the Crime of Aggression” (hosted by Liechtenstein)

Overview by Georgios Plevris, Research Associate PILPG-NL

Speakers:

1. Ms. Athaliah Molokomme, Attorney general of Botswana

2. Mr. Stefan Barriga, Author of The Traveaux Preparatoires of the Crime of Aggression

3. Mr. Claus Kress, Author of The Traveaux Preparatoires of the Crime of Aggression

4. Mr. Don Ferencz, Visiting Professor at Middlesex University School of Law and Convenor of the Global Institute for the Prevention of Aggression

 
Highlights:

• The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it.

• The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter.”

• France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties.

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The side event was organized by the delegation of Liechtenstein and addressed current issues of the activation of the jurisdiction of the crime of aggression. Since more than 30 states have submitted instruments of ratification on the Amendments, the spotlight now turns to the process and issues surrounding the activation of the jurisdiction. The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it. Mrs. Athaliah Molokomme stressed out the importance of the Kampala Amendments, its contribution in making the Rome Statute a more universal one, and pointed out that any attempt to renegotiate the jurisdiction of the ICC over the crime vis-à-vis opting clauses will be at the very least troubling. What is imperative at the moment is for the States Parties to communicate how they understand jurisdiction over this crime. The Crime of Aggression is seen as one that offers protection to small and vulnerable countries like Botswana.

Next, Stefan Barriga demonstrated in detail the compromise reached between the ‘consent camp’ and ‘protection camp’ with regard to the opt in/out clause as spelled out in Art. 15 bis of the Kampala Resolution. The core of the deal essentially excludes non-State Parties from ICC jurisdiction with regard to nationality or territoriality of crime perpetration. Examples were given with the kind participation of the audience. For example, if the aggressor is a State Party that has not ratified the Agreement, such as the UK for example, and the victim is also a State Party that has not ratified it (like Sweden), then the ICC has no jurisdiction. On the other hand, if a State Party that has not ratified is the aggressor (like UK) and the victim is a State Party that has ratified such as Liechtenstein, then the ICC has jurisdiction.

An issue that created confusion and debate is seen vis-à-vis Article 121(5), 2nd sentence that reads, “In respect of a State Party which has not accepted the amendments, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory”.
The above sentence created many interpretational issues, and in Kampala it was seen that it should not be red in a literal way when it comes to the special crime of aggression. There was a clear mandate in the original Rome Statute to define and set the scope of jurisdiction vis-á-vis the crime of aggression, and that was exactly what the Kampala Resolution did.

The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter”. The threshold sentence reflects the ambition to criminalize violations of the prohibition on the use of force. There are two functions in that threshold; firstly, it is an intensity threshold, meaning that not each and every minor use of force is a crime of aggression, despite it being a violation of international law and of State obligations. Secondly, the threshold requirement recognizes an important fact of international practice: the grey areas of the prohibition on the use of force, such as the use of force by many States in Syria against ISIS, arguments of self-defense and collective defense, and even cases of contested cases of humanitarian intervention. Thus, the aim of the threshold is to protect the ICC from such grey areas. What is reflected in the qualifiers is the fact that customary international criminal law has not developed to the extent where every violation on the prohibition of the use of force amounts to such a threshold. Setting the intensity threshold should not be an arbitrary policy choice.

Many comments and questions were generated in the audience, where many State Parties delegations were present, including Sweden, UK, France and Argentina to name a few. In particular France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties. UK underlined the role of the democratic process in ratifying and accepting amendments to the Rome Statute, and how it would not consider itself bound by the amendment, a stance in accordance with international law. On its side, France raised similar concerns with the UK. More specifically, the French delegate remarked the confusion that exists by the double interpretations on the Amendments that prevail at this time, namely an automatic activation versus the Art. 121(5) of Rome Statute interpretation. The question raised was why should States Parties opt out of an amendment they disagree with and have no intention to ratify? The panel speakers addressed these questions and other comments in their concluding remarks, noting that it will be important for these countries to ratify, because this will allow jurisdiction for when they are-potentially- victims of a crime of aggression. Additionally, if a State does not want to give jurisdiction of the Court on the crime of aggression, they it can also actively and explicitly do so in a declaration of no ratification to the Registrar. Finally, on comments about the jurisdictions over non-state actors, the speakers recognized that there is no appetite to broaden the definition for the crime of aggression to include non-state actors, something that was also observed in the International Military Tribunals’ practice in Nuremberg and Tokyo, who avoided as well such expansionist definitions.

Side Event: “The Bemba Ruling and Beyond: Accountability for Sexual Violence at the ICC”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

1. Ms Gloria Atiba-Davies, Head of the Gender and Children’s Unit, Office of the Prosecutor of the ICC

2. Dr Yassin Brunger, Lecturer, Queen’s University Belfast

3. Ms Dieneke de Vos, PhD Candidate, The European University Institute

4. Ms Kelly-Jo Bluen, Project Leader International Justice, Institute for Justice and Reconciliation (Chair)

 
Highlights:

• The Bemba judgement can be regarded as a historical moment in the international prosecution of sexual and gender based crimes.

• This was the first conviction by the ICC based on charges of sexual violence, as well as it was the first conviction by the ICC based on command responsibility as the mode of liability.

• It was also the first case in which sexual violence against male victims was prosecuted as rape. The Chamber considered that rape is a gender-neutral offense, victims and perpetrators can both be male or female.

• There is now an increased attention for the prosecution for sexual and gender based crimes, in which offenses such as forced marriages and forced pregnancies are included.

• International criminal justice has a role to play in addressing issues of gender-based discrimination.

This side-event entitled “The Bemba Ruling and Beyond: Accountability for Sexual Violence at the ICC”, discussed various aspects of the case against Jean-Pierre Bemba Gombo, and placed it in the broader context of the investigation and prosecution of sexual and gender based crimes. Jean-Pierre Bemba Gombo, former Congolese Vice-President, was convicted for crimes committed by the MLC (movement for the liberation of Congo) in the Central African Republic in 2003 under his command. The Bemba judgement can be regarded, for various reasons, as a historical moment in the international prosecution of sexual and gender based crimes. Dieneke de Vos discussed the substantive legal side of the judgement, after which Gloria Antiba-Davies elaborated on the practical side of dealing with the victims and witnesses in the case, after which Yassin Brunger placed the case in the broader context of international criminal law.

After an introduction by the chair, Ms Bluen, Ms De Vos started the panel session by covering various aspects that made the Bemba case stand out. The most relevant aspects being the fact that this was the first conviction by the ICC based on charges of sexual violence, as well as it was the first conviction by the ICC based on command responsibility as the mode of liability. It was also the first case in which sexual violence against male victims was prosecuted as rape.

The Chamber considered that rape is a gender-neutral offense, victims and perpetrators can both be male or female. Another interesting consideration of the Chamber is the fact that they considered acts of rape as a course of conduct of the MLK, and not as isolated acts of sexual violence. Additionally, the Chamber assessed the personal nature of the offenses and the stigma that is attached to victims of sexual crimes. With regards to command responsibility under article 28 of the Rome Statute, various types of evidence were used to establish this responsibility, such as: the fact that Bemba issued operational orders, that he was in the position to dismiss personnel, the fact that he had regular communication with those in the field, and that he received NGO reports concerning the situation in CAR. It was concluded that Bemba was in charge of the offenders, knew of what they were doing and did too little to prevent it, and had in fact created a climate of acquiescence. Other factors such as failure to provide adequate payment and failure to provide adequate training, can also be relevant for the establishment of command responsibility. There is now an increased attention for the prosecution for sexual and gender based crimes, in which offenses such as forced marriages and forced pregnancies are included.

Gloria Davis proceeded to talk about the role of the Gender and Children’s Unit in the Bemba case. She explained – in the presence of Jean-Jacques Badibanga, who was a trial lawyer for the prosecution in the Bemba case – that the prosecution strategy was to focus on the sexual and gender-based crimes. This required the Gender and Children’s Unit to be involved from the very beginning of the investigation. Davis organized a pre-deployment meeting before the investigators would go out in the field, to brief all of the staff that was to be engaged in the investigation on how to approach matters of sexual violence in the particular cultural context. Investigators were made aware of how the population they would be dealing with would interact with them, how they would speak about such matters and what language they would use when talking about sexual violence, and how to sensitively interact with victims taking their culture into consideration. Furthermore, the mental health of both the witnesses and investigators is a very important issue in such investigations, and therefore attention was paid to their psychological and sociological needs. With regards to victims, medical assistance was often required as well. In addition, once the witnesses were in the Netherlands for the proceedings, it was important in order to reduce their anxiety, that they would deal with the same people who had spoken to them during the investigation phase.

Yassin Brunger talked about the Bemba case from a different perspective, discussing how criminal justice addresses gender-based and sexual violence. She argued that, although the Bemba judgement is a step forward in addressing these crimes, we must counteract the narrative of sexual violence as a weapon of war. Rape and other types of sexual violence are not trapped within the confines of war. Brunger argues that the categorization as a war crime is not victim-centered enough, and does not do full justice to the victims that came to testify. This because gender-based violence relates to issues of discrimination, women and girls have been disproportionately affected and are often subject to patriarchy of the state, by laws that often do not recognize rape as such. She argues therefore that international criminal justice, aside from human rights law, has a role to play in addressing issues of gender-based discrimination. This would require a gender-based, or even gender-centered approach not just by the OTP, but as a court-wide approach.

Jean-Jacques Badibanga, trial lawyer for the Prosecution of the Bemba case, was also present at this event, and made some additional comments. Finding persons who are willing to share their story with the investigation team is very hard, even more so when it comes to male victims. In this case, two male victims of sexual violence were willing to testify, but this usually requires a lot of efforts by the investigation team. There are certain circumstances, for instance in the case of detention, in which investigators can suspect cases of sexual violence and should pay more attention and ask more follow-up questions. In addition, attention needs to be paid to the needs of the victim when it concerns who they want to speak to. It cannot be assumed that female victims want to talk to female investigators and vice versa. In the Bemba case for instance, one of the male victims refused to talk with male investigators, where the other male victim would only speak with male investigators. It is therefore of crucial importance that the investigation approach towards victims of sexual violence is never homogenized.

Side Event: “International Criminal Liability for Spoken Word Alone: -

- Inducing and Soliciting Crimes against Humanity under Article 25(3)(b) of the Rome Statute. A Prima facie case against President Rodrigo Duterte of the Philippines.”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Highlights:

• Can persons in positions of power be held accountable for speeches which induce and solicit the perpetration of crimes against humanity, under article 25(3)(b) of the Rome Statute?

• Alison Smith (NPWJ) noticed that the Prosecutor, Fatou Bensouda, has expressed that she will be closely following the situation in the Philippines.

• Harry Roque noted that the statement by Bensouda could have the effect of undoing everything that much of civil society in Asia has been fighting for over the last 15 years and stressed the importance of the complementarity principle.

This side-event was organized by the NGO No Peace Without Justice (NPWJ). Alison Smith, Legal Counsel and Director of the International Criminal Justice Program at No Peace Without Justice, presented the results of their research concerning President Rodrigo Duterte of the Philippines. Smith expressed growing concern over rising nationalism and extremism, and over the fact that people in positions of power are seemingly allowed to make increasingly violent or hate inducing statements. Therefore, NPWJ decided to research what the liability is for public statements inducing or soliciting crimes against humanity, centering around the public statements made by President Duterte of the Phillipines.

For the research concerning only the crime against humanity of murder, only public statements and other publicly available information were used as sources. The crime of murder here refers to the reportedly more than 3.000 extrajudicial killings that are being linked to Duterte’s war on drug dealers. The question is thus whether persons in positions of power can be held accountable for speeches which induce and solicit the perpetration of crimes against humanity, under article 25(3)(b) of the Rome Statute. The purpose of this side-event was to present the results and engage in a discussion with experts on criminal law and experts on the situation of the Philippines.

The report looks at two aspects, namely whether the elements of crimes against humanity are met, and whether the evidence will be enough to pass through all the stages of a successful case at the ICC. On the basis of the public evidence available, NPWJ concludes that both aspects are fulfilled. Smith noticed that the Prosecutor, Fatou Bensouda, has expressed that she will be closely following the situation in the Phillipines.

After the brief presentation of the results, the attendees had the opportunity to comment and ask questions. Harry Roque, Member of Congress and representative of the Philippines to the ICC, shared his observations with regards to the effect of the statement of Bensouda concerning the accession of the Philippines and possible other Asian states. He expressed his fear that this will lead to the withdrawal of the Philippines from the Rome Statute, as well as the deterrent effect it has on the possible accession of other Asian states. He noted that the statement by Bensouda could have the effect of undoing everything that much of civil society in Asia has been fighting for over the last 15 years, and stressed the importance of the complementarity principle. Adding to this that Duterte has only been in office for a little over a hundred days, the Philippines should at least be given the opportunity to prosecute in domestic courts. Additionally, if civil society wants to intervene, he questioned, why do they not do so in domestic courts?

Ambassador Ledda, of the Philippines in The Hague, stressed how deeply the drug problem is embedded in the society, and that the government is trying to control a group that has a lot of resources. The Ambassador questioned why there is no move from the international community towards dealing with these criminal groups, and stressed the need for civil society and government to cooperate with regards to this matter.

ASP Briefings

The African Critique

Introduction

The Rome Statute is the treaty that established the International Criminal Court (ICC). Article 12 of the Rome Statute provides that the ICC exercises jurisdiction on crimes committed on the territory or by the nationals of states parties to the court.[1] Article 13 provides that the Court exercises jurisdiction when a situation is referred to the Prosecutor by a State Party, by the Security Council, and where the Prosecutor has initiated an investigation by his own initiative. In accordance with this, the ICC has so far investigated ten situations. The situations in Uganda, Democratic Republic of the Congo, Central African Republic, and Mali have been referred by the states themselves. The Security Council referred the situations in Darfur, Sudan and Libya. The situations in Kenya, Cote D’Ivoire, and Georgia have been opened by the prosecutor’s own initiative.

Out of the 124 member states of the ICC, 34 are African.[2] African states were at the forefront of pushing for the creation of the ICC and were among the earliest to ratify the Rome Statute which established the ICC.[3] Recently, however, the peaceful relationship between Africa and the ICC has taken a different course.

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Core Criticisms

There are a number of different critical points that are raised by African states. The purpose of this paper is to summarize the core criticisms that are raised and to explain what lies underneath. The paper does not discuss the merits of the critique as such, and the points raised in contravention: this is important too, of course, but beyond the scope of this submission.

First, there is the criticism that the ICC inappropriately targets Africa and African leaders.[4] Of the ten situations and cases under investigation, critics point that the ICC so far has only prosecuted situations and cases in Africa. Currently, with the exception of Georgia, all situations and cases under investigation are from Africa. All four persons who have thus far been convicted by the Court are Africans. All 32 who have been charged by the Prosecutor are also African.

Second, critics argue that powerful states use the ICC and the imagery of international criminal justice as a political instrument. These states refuse to join themselves and use their power in for instance the Security Council to prevent prosecutions of themselves or their allies. As a consequence, these critics experience that there is an image that it is only/mostly Africans that are committing international crimes. And that other states and an international external institution that needs to “help” Africans by bringing justice, comparable to how that was experienced in the colonial era. This has led to an increasing sense and depiction by African leaders of the ICC as a “neo-colonialist instrument” or “racist vehicle.”[5]

Third, the critique asserts that the ICC is mistaken in claiming that international law no longer provides head of state immunity to leaders for prosecutions of allegedly committing international crimes during their term in office. Article 27 of the Rome Statute provides that the official capacity of a person indicted will not be a bar to prosecution. However, this does not apply to non-state parties, such as President Bashir of Sudan. It could be argued, however, that the UNSC referral of the Darfur situation extended the reach of the ICC Statute, including its Article 27, over Sudan.[6] Moreover, and more fundamentally, there is also the argument, that is not accepted by the vast majority but is nevertheless raised by others, that foreign and ICC prosecution of a leader while in office is as such a violation of customary international law and state sovereignty, even for states that signed up to the ICC. And that customary international law provides that this is only possible if the state concerned waives the immunity of its leader. The AU has adopted resolutions that reflect this position. On Oct. 12, 2013, the AU made a decision at its extraordinary summit that no criminal charges can be brought against a sitting head of state or government.[7] In June 2014, at its 23 ordinary session in Malabo, Equatorial Guinea, the AU adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to merge the African Court on Human and People’s Rights and the African Court of Justice.[8] Article 46A Bis of the Protocol on Amendments provides immunity for serving heads of state and senior government officials.[9] This received a lot of critique from mostly Western commentators that this undermines the fight for impunity. A proposal to exempt heads of states from prosecution has been presented to the Assembly of States Parties to the Rome Statute.[10]

Fourth, it is also brought against the ICC that its proceedings violate the principle of complementarity.[11] The argument here is that requests by African states to allow them to address their own situations through their own domestic courts,[12] or even to support them doing so, were rejected or ignored. This has been experienced as an undermining of the sovereignty of African states and as unhelpful in addressing the justice needs of the affected community, it is asserted. The ICC has, however, also declared the Al Senussi case inadmissible because Libya were conducting their own domestic prosecution. However, according to the critique, the Court should be more willing to allow domestic prosecutions in general and more actively assist such domestic prosecutions where it can rather than engage in an adversarial relation with domestic judicial authorities, where possible.

Fifth, the AU and others claim that intervention by the ICC can have an adverse effect on peace negotiations between parties to a conflict. As a result, the AU’s Peace and Security Council (PSC) requested deferral of the Darfur situation referred by the UN Security Council by claiming that the approval of the arrest warrant could undermine the ongoing efforts aimed at facilitating the resolution of the conflict.[13]

Sixth, there is also a number of different diplomatic fights on cooperation between the ICC on the one hand and a number of state parties on the other. According to the ICC, these states are violating their obligations to cooperate, or are even undermining the Court. Examples are the situation with Kenya, which the ICC referred to the ASP, and the welcoming of President Bashir of Sudan despite the ICC’s arrest warrant against him, which the ICC referred to the UN Security Council.

Origins of the Critique

Tensions between the ICC and African states increased after the ICC’s decision to issue an arrest warrant for Sudan’s president Omar Hassen Al Bashir on March 2009. Although Sudan is not a party to the Rome Statute, the situation in Darfur was referred to the ICC by the UN Security Council in March 2005. This was the first arrest warrant that was issued by the ICC for a sitting head of state. Sudan criticized the ICC as a “neo-colonialist” and “anti-African instrument.”[14] In the context of Darfur, the AU’s PSC criticized the indictment as an obstacle to the progress of peace in Darfur. In addition, the AU’s PSC requested the UN Security Council to exercise its powers under Article 16 of the Rome Statute to defer the indictment and arrest of Al Bashir.[15] The UN Security Council refused to do so, which prompted the AU to adopt a resolution calling for the African states not to cooperate with the ICC in arresting Al Bashir on July 3, 2009 at the 13th Annual Summit in Sirte, Libya.[16] So far, eight states parties to the Rome Statute have since welcomed Bashir on their territory and refused to arrest him.[17]

The tension further escalated when the ICC’s pre-trial chamber authorized the Prosecutor’s request to investigate the 2007 election violence in Kenya in March 2010. This led to the indictments of, among others, former opponents Kenyatta and Ruto who, as a protest against the ICC, joined forces and got elected as President and Vice President of Kenya. The ICC trials of Kenya’s leaders spurred the AU to hold an extraordinary summit in October 2013 in Ethiopia. Subsequently, the AU requested a deferral of investigations and prosecutions in the situations of Sudan and Kenya. In June 2015, the AU established an Open-ended Ministerial Committee of Ministers of Foreign Affairs on the ICC to ensure that the decisions of the Assembly of the AU concerning the ICC are implemented. Moreover, the idea of mass withdrawal from the Rome Statute has been discussed by African states under the auspices of the AU and a number of states have started the withdrawal process recently.

Although much of the critique can be understood as political maneuvering to protect state sovereignty from outside interference, and in some cases to provide immunity to violent dictators, it is too simplistic to reject the critique. The ICC and its supporters make a valid argument that i) the ICC has been unable to prosecute elsewhere due to its limited jurisdiction, ii) that those situations that it investigated and prosecuted were situations of truly heinous crimes, iii) that these states were not themselves prosecuting, and iv) many states even referred their situations themselves. However, those making the critique submit that the way that international criminal justice functions, within the reality of geo-political considerations and limited jurisdiction and resources, still produces an image as if it would only be Africans that commit international crimes, and that it is only Africans that require outside help to address those crimes. And it is this image, or perception, that is experienced as reminiscent and reinforcing of colonial and racist relations between the West and Africa.

Deeper causes to the critique lie also in the reality that an international criminal trial of a small number of perpetrators cannot address the magnitude and complexity of the situation at hand, and thus can only modestly contribute to peace and justice rather than deliver it, as is also often the unhelpful image and expectations that is raised with regard to the ICC. As a consequence, the important additional transitional justice mechanisms that also address justice needs of victims and society are often marginalized or never occur. This is not something that the ICC can necessarily help, as it is a criminal court of law and by its nature and essence thus approaches a situation as such. However, because there are broader justice needs than the ICC is able to offer and limited abilities to otherwise remedy, the result is that the expectations are raised beyond what the ICC can do and disappointment the consequence, leading to discontent with the ICC and the international community at large.

Moreover, the functioning of the ICC and international community often fails to be sufficiently bottom-up. As ASP President Kaba noted in his address at the ASP’s 15th Session on Friday 18 November 2016, justice comes from below and cannot be handed top-down. This is inherently difficult, all sides recognize, but since calls for justice are the raison d’être of the ICC, as Kaba noted, it is important to keep working on how the ICC can function as best possible to allow their important contribution to meet those justice needs.

Addressing mass violence and contributing to peace and justice for the affected communities is an extremely important but also complicated process. It is therefore not surprising that the efforts to do so are far from perfect and raise critique. This critique is therefore not necessarily “African” as also the Netherlands noted in their submission on Friday 18 November. It has to do with the challenge that justice is not something that can be externally provided in a top-down one-size-fits-all-manner but at the same time usually welcomes the ICC’s or otherwise criminal trials as helpful contribution to these justice needs, which for organizational reasons to certain extent functions top-down and structured according to certain external rules. This is a paradox within which a careful balance need to be found, together with all involved. Moreover, it is important to understand that one court in The Hague with limited jurisdiction and resources is limited in its abilities to function differently and address victims’ justice needs fully. Therefore, rather than ignoring or denying and explaining exclusively how important the ICC is, the Assembly of States Parties (ASP) would serve the ICC best by taking the critique seriously, analyze how to address concerns, and find and build on the common ground all state parties have to address international crimes. This has also been the course that Chief Prosecutor Bensouda, the ICC’s Registrar Von Hebel and ASP President Kaba have taken during the 15th Session of the ASP and creates a more constructive and open environment in which there is space to search for ways to find common ground and solutions.

Recent Developments

In the Fifteenth Session of the ASP, state party cooperation with the ICC is widely debated. Moreover, on 11 July 2016, the Pre-Trial Chamber II of the ICC referred to the ASP the non-cooperation of Republics of Uganda and Djibouti to arrest and surrender President Al Bashir to the ICC.

The criticisms and tensions between the ICC and Africa will continue in the foreseeable future. Burundi, South Africa and Gambia have recently announced that they will withdraw from the ICC and have taken steps thereto. South Africa for instance argued that the ICC is blocking peace processes by its position on head of state immunity and Gambia announced that it withdraws from the ICC because the ICC is targeting people of color.[18] However, while these states are taking steps to leave the ICC, many other African states are using their diplomatic power to persuade states to stay, Gabon recently referred their own election violence to the ICC, and Mali and Niger cooperated recently with the ICC in the prosecution of Al Mahdi for destroying cultural heritage in Mali.

Most strikingly, the current and ongoing 15th Session of the ASP has seen a very critical yet constructive and open tone and discussion on these issues. While some states still express one or the other polarized positions (rejecting the ICC as “racist vehicle” or denying that the critique holds any merit), most states accept that there are concerns that need to be listened to. This has led for instance South Africa to strike a different tone in their submissions, submitting that they will take the 12-month period that it takes before their withdrawal would become final as a period in which they will work within the ASP structure to find solutions. In his address to the ASP on 18 November, President Kaba has been very clear in recognizing the critique and calling upon states to not withdraw from the ICC and use the ASP to work towards an ICC that better addresses the concerns that are raised and thereby strengthen its support and functioning.

To support this effort further, The Netherlands and PILPG are co-hosting a side event on Tuesday 22 November, 13:15-14:45 (in Everest 1&2) to address what underlies the critique and, on that basis, what this means on how to move forward, concretely, to regain support and legitimacy of the Court. The Representative of the African Union, the Office of the Prosecutor, an important voice of African civil society, and researchers of this topic will share their views on a roundtable panel. The event specifically invites others to join this discussion and share their view, to engage constructively on how to move towards strengthening the Court’s legitimacy and effectivity in doing its important work to contribute to the justice needs of those affected by mass violence.

Footnotes:

[1] Rome Statute of International Criminal Court, art. 12, July 17, 1998, U.N. Doc. A/CONF.183/9, available at: http://legal.un.org/icc/statute/romefra.htm.

[2] Assembly of states parties to International Criminal Court , The States Parties to the Rome Statute, available at : https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.asp.

[3] Sanji M. Monageng, Africa and The International Criminal Court: Then and Now, in AFRICA AND THE INTERNATIONAL CRIMINAL LAW, 13-20 (Gerhard Werle, Lovell Fernandez, and Moritz Vormbaum, eds.)

[4] Mary Kimani, Pursuit of justice or Western plot? International indictments stir angry debate in Africa, AFRICA RENEWAL, Oct. 2009, available at http://www.un.org/en/africarenewal/vol23no3/233-icc.html.

[5] W Douglas Smith, The International Criminal Court: The Long Arm of Neocolonialism? INTERNATIONAL AFFAIRS REVIEW, Nov. 1, 2009, available at http://www.iar-gwu.org/node/87.

[6] Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE, 2009 7 (2), p. 333 – 352, available at http://jicj.oxfordjournals.org/content/7/2/333.full.pdf+html.

[7] Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia

[8] International Justice Resource Center, African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute,

[9] Draft Protocol on Amendments to The Protocol on The Statute of The African Court of Justice and Human Rights, available at: www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf

[10] UN depositary notification C.N.1026. 2013.TREATIES-XVIII.10 of 14 March 2014 (Proposal of amendments by Kenya to the Statute)

[11] M. deGuzman, Margaret, Is the ICC Targeting Africa Inappropriately? available at http://iccforum.com/africa.

[12] See The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation, Case No. ICC-01/11-01/11-344-Red, Judgment,( May 13, 2013), available at : https://www.icc-cpi.int/pages/record.aspx?uri=1599307., The Prosecutor v. William Samoei Ruto, et al., Case N. ICC-01/09-01/11-307, Judgment (Aug. 30, 2011), available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/09-01/11-307.

[13] Peace and Security Council Communique, para. 9, PSC/MIN/Comm(CXLII), (Jul. 21, 2008), available at http://www.iccnow.org/documents/AU_142-communique-eng.pdf.

[14] Zihag Liu, The Prosecutor vs. Omar al-Bashir, INTERNATIONAL POLICY DIGEST, Oct. 31, 2016, available at http://intpolicydigest.org/2016/10/31/the-prosecutor-vs-omar-al-bashir/.

[15] See footnote 12.

[16] Mia Swart and Karin Krisch, Irreconcilable Differences? An Analysis of the Standoff between the African Union and the International Criminal Court, African Journal of International Criminal Justice, 0 (2014), available at http://www.elevenjournals.com/tijdschrift/AJ/2014/0/AJ_2352-068X_2014_001_000_003.

[17] See footnote 13.

[18] ALJAZEERA, Gambia withdraws from International Criminal Court, Oct. 26, 2016, available at: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.