Claims of ICC bias and double standards at ASP annual meeting
What you need to know:
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.
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.
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 Godínez, 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
