THE recent threat by some African states (ie South Africa, Gambia and Burundi) to withdraw their memberships from the International Criminal Court has sparked uncertainty about the future of the ICC, and shaken the foundation of the global criminal justice system, which was designed to eliminate impunity in war crimes.

The UN high commissioner for human rights thus urged “the international community to remember there is not yet any alternative in place to ensure the implementation of the (Rome) Statute or protect citizens from war crimes” and called for them to demonstrate resolve and strength.

Experts predict that Kenya, Namibia and Uganda may follow suit — leading to the disintegration of the ICC. Russia’s withdrawal from the statute adds to concerns of the court’s future. A rising trend of withdrawals could signal that the ICC has failed to live up to the hopes of certain members. It is imperative, therefore, that this trend is reversed in order to restore the ICC’s legitimacy.

The court must rebuild trust in its impartiality.

The ICC was established for the enforcement of international justice under the Statute in 2002. Under Article 5 of the statute, the ICC has the jurisdiction to prosecute individuals for four types of crime: genocide (ie killing members of a national, ethnic, racial or religious group); crimes against humanity (ie widespread murder, apartheid, torture directed against a civilian population); war crimes (ie directing attacks against a civilian population or individual not taking direct part in hostilities under the Geneva Conventions); and crimes of aggression.

The ICC provides an international forum to conduct trials of those who are generally not amenable to the jurisdiction of national courts, due to their stature and/or the magnitude and nature of their crimes. It thus supplements existing national judicial systems. Under Article 13 of the statute, when individual states fail to prosecute offenders, the investigations are referred to the ICC by a state or the Security Council, or are independently initiated by the Office of the Prosecutor.

There is a perception that the ICC is biased against African countries, that it tries African leaders disproportionately and brushes aside atrocities committed elsewhere. It is stated that the court does not treat member states equally. Specifically, it is pointed out that the ICC ignores the ‘war crimes’ of Western nations, seeking only to prosecute Africans, that the ICC, despite being called the International Criminal Court, is in fact an ‘international Caucasian court’ for the persecution and humiliation of people of colour.

On the contrary, others contend that the ICC is acting as a neutral arbitrator; that existence of the court is essential for safeguarding peace, security and the wellbeing of the world; that South Africa’s withdrawal would reverse its role as a leader of promoting victims’ rights and its values in the post-Apartheid era; that such withdrawal would be a serious setback in the fight against immunity and the statute would lose its universality; and that it would also increase the likelihood of genocide, crimes against humanity and war crimes in the future.

While appreciating both the positions, the UN high commissioner stated: “It may not be perfect, in design nor operation — like any other institution, or state for that matter. But altogether it is the best we have.”

The commissioner, in fact, emphasised the need to stand with the ICC at a time of shock and uncertainty. He said: “To keep this international system intact becomes even more pressing in the face of enormous pressures being heaped on it today — not least for small states who, for their security, need the companionship and protections provided by international law and by this court.” However, the commissioner’s statement fails to persuade those who feel dissatisfied with the ICC’s role. While the statement hints an urgent need for reforms, it fails to provide a solution.

The solution lies in bringing the international community on board. An independent commission of jurists may be constituted to determine and redress state grievances.

At the same time, African states must strengthen their national judicial systems to prosecute offenders of war crimes. They have to use their strength as a region to reform the ICC from within, ensuring the principle of impunity applies equally to all states.

All other members of the ICC need to play a proactive role to protect victims of atrocities. The UN high commissioner must urge member states to provide solutions. If the ICC loses its integrity, it may amount to the failure of the international criminal justice system to protect the world’s most vulnerable victims of war crimes. As it is a court of last resort for victims disappointed by the courts of national jurisdiction, the ICC must be impartial.

The writer is a lawyer based in Lahore.

Published in Dawn, November 30th, 2016



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