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Vol 57 No 22

Published 4th November 2016

More talk talk than walk walk

The ICC is unlikely to see a domino effect from the withdrawal of three African countries but determined critics raise other concerns

Like comedian Groucho Marx who once declared that he wouldn't want to join any club that would have him as a member, Burundi's Pierre Nkurunziza, South Africa's Jacob Zuma and Gambia's Yahya Jammeh all want to pull their countries out of the International Criminal Court (ICC). The human rights records of Zuma (as head of the intelligence unit in the African National Congress in exile in the late 1980s), Nkurunziza and Jammeh have been intensively scrutinised. There is also a grab bag of motives behind the announcements of withdrawal. Political self-preservation looks to be the strongest incentive.

The short-term effect will be to encourage critics of the Court to demand concessions from its coming annual Assembly of State Parties (ASP) meeting in the Hague on 16-24 November rather than to trigger a mass withdrawal. This is partly because the action by the Burundian and Gambian presidents is widely seen as self-serving by politicians who have already been accused of slaughtering their opponents. Meanwhile, South Africa's announcement, which is by far the most significant, is seen as closely tied to President Zuma's weakening domestic position (see Feature, A weeks of defeats for Zuma & AC Vol 57 No 21, Stalwarts push for Zuma's exit). After losing several battles with South Africa's national courts, Zuma may be forced out of office within a year and his plan to quit the ICC would be dumped, along with many of his other projects.

The Court's critics have two strong lines of attack. The quality of its investigations and its ability to protect witnesses has fallen far short of requirements and these weaknesses have been exploited by the richer and better connected defendants, such as Kenyan President Uhuru Kenyatta and his Deputy, William Ruto. Secondly, the geo-political constraints – that only two of the five Permanent Members of the United Nations Security Council are ICC members – means that it's easy to claim that's its guilty of double standards. Unless a government refers a case in its own country to the Court (as Congo-Kinshasa and Uganda have done), it is up to the UNSC or the ICC Prosecutor to refer cases. It's evident that both Syria and Israel, neither of which are ICC members, enjoy the protection of their P5 patrons on the Council: Russia and the United States respectively.

The sequence of the withdrawal announcements, between 12 and 28 October, look strategically timed: to rattle the ICC Prosecutor, Fatou Bensouda, and to extract concessions at negotiations later this month. The coordinated withdrawal has shaken officials, say ICC sources: their concern is more about a gradual undermining of the Court rather than a mass withdrawal. 

Yet the fear of a mass African walk-out this month, which would effectively shut down the Court, might lead members to water down key provisions of the Rome Statute and the ICC's Rules of Evidence and Procedure at this month's Assembly. This ploy has been used effectively by Kenya, with support from Rwanda and Ethiopia, in recent years. However, the UN General Assembly debate on the ICC on 31 October suggests that governments from different continents are pulling together to support the Court. The ASP may be less susceptible to bullying than before.

The ICC has 124 members, 34 of which are African, its largest regional bloc. While some ICC states, including Kenya, Namibia and Uganda have toyed with the idea of leaving, they have wavered. In favour of quitting in 2015, Namibia then changed its mind in 2016. Ugandan President Yoweri Museveni this year called the ICC 'useless' at his presidential inauguration yet his government had referred the situation in Uganda, with militia leader Joseph Kony in mind, for investigation in 2004. That ensured international support for Museveni's campaign against Kony's brutal Lord's Resistance Army and diverted attention from his own government's human rights abuses, such as herding thousands of northern Ugandans into insanitary state-controlled camps, officially for security reasons.

Kenya, has passed two bills to pull out of the ICC, in 2010 and 2013, but neither went to cabinet or was signed by President Mwai Kibaki or his successor Kenyatta. A bill to repeal the International Crimes Act, which incorporated the Rome Statute into Kenya's constitution, now awaits parliamentary consideration (AC Vol 57 No 16, Fear stalks the law). With the ICC cases against Kenyatta, Ruto and four others having collapsed, Kenya's government might decide it has more leverage inside rather than outside the Court.

At the UN General Assembly debate, Kenya kept up the fusillade: the ICC was a 'deep disappointment' and its work a 'dismal output', 'counterproductive and antagonistic to its founding ideals', with 'unacceptable' and 'lower thresholds and standards than those found in our national courts'. 

Some African countries, such as Botswana and Senegal, fully support the Court. Tanzania, like others, was positive but with caveats: it lamented the ICC's 'tumultuous relationship with Africa' and argued for dialogue but against unhelpful lectures and claims of the 'high moral ground from outside the continent'. 

Others, particularly some African leaders, call the ICC 'imperialist', worry about future cases against themselves or resent being told who they can or cannot host. Still others are indifferent but see no obvious benefit in leaving and want to keep their options open. For example, a former critic of the Court, Gabonese politician Jean Ping, a former Foreign Minister who is now in opposition, has switched sides and is lobbying for the ICC to launch an investigation in his country. Other leaders resent being caught up in President Kenyatta's personal vendetta against the ICC and being bulldozed by him.

Kenyatta's bid to orchestrate a mass exit plan for African states was supported by Chad at July's AU summit in Rwanda. However, it was rejected by Algeria, Burkina Faso, Cape Verde, Congo-Kinshasa, Côte d' Ivoire, Nigeria, Senegal and Tunisia. Nigeria argued that African members had joined the Court individually and demands for a collective withdrawal 'did not make sense'. Abuja reiterated its support for the ICC at the UN General Assembly and said African members should work to change it.

Strong defenders of the Court include Botswana's Foreign Minister, Pelonomi Venson-Moitoi. She reiterated her support for the Court after the withdrawals were announced. She is in a tight race with Kenya's candidate to head the AU Commission, Amina Mohamed, a close ally of Kenyatta and vehement foe of the Court (see Feature, Amina jumps to the front).

Troika withdrawals
Withdrawal from the Court could prove politically trickier and more protracted than its advocates reckon. Nor do opinion polling organisations such as AfroBarometer find that the public shares their leaders' antipathy to the Court. Quite the opposite in many cases where there has been no national attempt to compensate the victims of orchestrated violence, such as in Kenya's Rift Valley or Sudan's Darfur region, still less to prosecute those who ordered the killings.

President Nkurunziza announced that Bujumbura wanted to withdraw on 12 October, after a 94 to 2 parliamentary vote in favour, with 14 abstentions. This followed a state crackdown against opposition protestors, including killing and rape, after Nkurunziza announced he would run for a third presidential term. The ICC began a preliminary examination of the Burundi situation in April. South Africa's notice of withdrawal to the UN Secretary General, Ban Ki-moon, came next, on 19 October, shortly after Zuma's meeting with Kenyatta in Nairobi. It seems specifically linked to Zuma's refusal to detain Sudan's President Omer Hassan Ahmed el Beshir during an AU summit in South Africa in June 2015 (AC Vol 56 No 13, Fugitive flees as courts sidelined). As an ICC member, South Africa is required under the Rome Statute to cooperate with the Court and arrest fugitives such as Omer el Beshir, who faces charges of war crimes, crimes against humanity and genocide in Darfur.

South African lawyers, including retired Judge Richard Goldstone, and numerous human rights groups condemned the move, arguing that quitting the ICC by executive fiat was unlawful. Parliament would first have to vote to rescind the ICC Act. Since then, the opposition Democratic Alliance has lodged a case in court declaring the withdrawal to be illegal. Julius Malema, leader of the Economic Freedom Fighters, has also joined the opposition to South Africa's withdrawal. After mass protests in Pretoria on 2 November and the release of Public Protector Thuli Madonsela's full report on corporate influence on Zuma, his government's future looks highly problematic.

Gambian President Jammeh, who withdrew from the ICC on 25 October, seized power in 1994. Having won a reputation as one of the continent's most brutal and corrupt leaders, he has faced serial criticism by groups such as Amnesty International for failing to implement decisions by African judicial bodies concerning the 'murder, torture and disappearance of journalists'. His officials have accused the ICC of being racist, routinely calling it the 'International Caucasian Court', for targeting African leaders.

Jammeh's intention may be to forestall an ICC intervention and to consolidate support before the elections in December. It may also be a bid to undermine his former Justice Minister, ICC Prosecutor Bensouda, who has emerged as singularly determined to pursue the Court's mandate, despite mounting political pressure. Together, the personal agendas of Jammeh, Nkurunziza and Zuma fall far short of making a compelling case for a mass walkout from the Court, say several African officials who remain highly critical of its performance and of the geo-politics that constrain it.

• The Public Protector Thuli Madonsela’s full report on the Gupta family and President Zuma is available here:


Leaving with a whimper not a bang

United Nations Secretary General Ban Ki-moon is asking Burundi, Gambia and South Africa to reconsider their withdrawal from the International Criminal Court. Prosecutor Fatou Bensouda, who staffers say is really frustrated by the walk out, says it will not derail the ICC.

The Assembly of States Parties, which meets in the Hague, Netherlands, on 16-24 November, is the Court's legislative body. It is responsible for electing judges, dealing with budgetary and other operational issues, taking up members' concerns and handling amendments to the Rome Stature and changes to its own rules. The ASP is also the forum to which the ICC refers matters of non-cooperation. Its members are professional diplomats: they prefer to discuss and compromise rather than to sanction. It is part of a wider deal-making arena where matters of economic and strategic advantage often trump human rights issues. Neither Burundi nor Gambia have much leverage with other member states. South Africa, amid its internal political turmoil, is a different matter.

When Kenya was unable to get the UN Security Council to postpone its cases for a year in 2013, it went to the ASP. However, it was too late in its calls to amend the Rome Statute to allow for immunity and in any case, would have been unlikely to succeed. Instead, ASP delegates decided to change the ICC's rules to permit senior officials with exceptional responsibility to be allowed to absent themselves from the Court while their case was proceeding, unless specifically requested to attend by ICC judges.

Human rights supporters worry about such compromises having led to a two-tier judicial system: one for the powerful and another for the weak. For example, ex-indictees President Uhuru Kenyatta and Deputy President William Ruto were coming and going almost at will while their fellow Kenyan indictee, radio announcer Joshua arap Sang, was required to attend the Court full time.

Having earlier changed rules of procedure and being reluctant to sanction uncooperative members such as Kenya, the ASP might make further compromises as a means of heading off more African withdrawals. The alternative would be to stand firm and insist that the exit of Burundi and Gambia – under their current leaders – is less important than standing firm, to preserve the integrity of the Court and focus on victims of mass atrocities.

Such a focus would require much better resourced investigations, using a top cadre of determinedly independent researchers, together with a well-financed and managed witness protection programme. Unfortunately, the history of messy compromise and lack of political support from rich and powerful countries means the first option looks more probable.

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