Op-Ed: International Criminal Court strengthened by South Africa’s withdrawal of the ICC repeal bill

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    On Tuesday the South African Government
    government withdrew the tabled International Criminal Court
    (ICC) repeal bill from Parliament. This followed from its
    decision on March 8 to revoke its notice to the UN of its
    intention to withdraw from the Rome Statute. This presents a
    crucial step in the right direction by the government of South
    Africa – rethinking its previous decision to thwart the pursuit
    of justice.

    The latest development was similar to that
    taken by President Adama Barrow’s newly elected government in
    Gambia, which last month rescinded the country’s withdrawal
    from the Rome Statute system. At a glance, this leaves Burundi
    – which withdrew from ICC in October last year – looking like
    more of an outlier than a trendsetter.

    It remains to be seen if the South African
    government’s revocation signals a shift in government’s
    intention to walk away from the ICC – as in the case of Gambia
    – but a South African withdrawal would undoubtedly have left
    the court weaker, without the political and practical support
    of a regional and international heavyweight. The ICC’s
    emboldened opponents would have needed no second invitation to
    step up their efforts against the court if they had seen
    previously strong supporters throwing in the
    towel.

    South Africa now has a chance to re-enter the
    fold and stand alongside a strong and vocal African region in
    support of the ICC and its pursuit of a more genuinely
    international justice; and it should take
    it.

    The Gambian government’s prior example of a
    change of heart was a welcome development which had the
    immediate effect of dampening rhetoric, and media reports, that
    African governments were pursuing a “mass withdrawal” from the
    ICC.

    The AU’s adoption of a so-called “ICC
    withdrawal strategy” at its Summit in January came with notable
    reservations from several African states. In fact it was
    anything but a “withdrawal strategy” and instead outlined a
    roadmap for continued engagement by the AU with the ICC. This
    followed many positive affirmations of support for the ICC,
    particularly from African states, at the last meeting of the
    Assembly of States Parties to the ICC in November
    2016.

    These developments demonstrate the widespread
    support for international justice across Africa and 2017 will
    undoubtedly show that the support of Gambia and other African
    member states for the ICC, and international justice, will be
    critical for the court’s ability to meet upcoming challenges.
    Particularly those it will face with future investigations into
    more powerful states and actors.

    In 2016 the Office of the Prosecutor opened
    an investigation into the situation in Georgia including
    international crimes allegedly committed by Russian armed
    forces. This followed the opening of a preliminary examination
    into international crimes allegedly committed in Palestine by
    both Palestinian and Israeli Defence Forces in January 2015.
    The ICC is also reportedly very close to opening an
    investigation into crimes under international law committed in
    Afghanistan.

    By virtue of the crimes having been committed
    on the territory of Afghanistan, a state party to the ICC, the
    Office of the Prosecutor has stated that that there is a
    reasonable basis to investigate crimes committed by the
    Taliban, Afghan Government forces and US military forces. This
    includes potential cases of the war crime of torture and
    related ill treatment by US forces deployed to Afghanistan at
    secret detention facilities operated by the Central
    Intelligence Agency. Crucially, these investigations will move
    the ICC’s reach firmly beyond the African continent, and will
    very likely meet significant political and logistical
    challenges as well as backlash from the powerful states whose
    nationals will be investigated.

    As a result, the ICC may well find itself
    increasingly isolated by its more powerful supporters going
    forward. Already several member states have questioned
    Palestine’s membership of the ICC, and some in the US have
    questioned any potential investigation into crimes committed by
    US personnel in Afghanistan on the basis that such crimes are
    not as serious as others under investigation by the ICC. In a
    possible sign of things to come, at the last Assembly of States
    Parties session, the ICC was squeezed to its absolute limit by
    the Court’s key financial contributing states, including the
    UK, France, Canada, Germany and others. These budget cuts
    damage the court’s ability to undertake investigations and
    prosecutions and could be seen as an underhand method to stop
    the court undertaking its work.

    The ICC will also have difficulty getting
    powerful states whose forces or nationals are being
    investigated to co-operate with the investigations. Without an
    enforcement arm or mechanism, the ICC relies entirely on the
    political offices of other states parties to ensure state
    cooperation, including by allowing the Office of the Prosecutor
    to conduct investigations relating to nationals, and in the
    territory of, countries who are not state parties. The ICC has
    seen already, in the Kenyan cases, and in the lack of
    enforcement of the arrest warrant for Sudanese President Omar
    al-Bashir, how far a lack of state co-operation can go in
    preventing successful investigations and
    prosecutions.

    It is incumbent then on a strong African
    continent – boosted by the recommitment of South Africa and the
    Gambia – as well as the court’s less individually politically
    powerful states and regional blocs to step up their commitment
    to the International Criminal Court. If the pursuit of
    international justice is not to be decried as one-sided or
    non-applicable to the major powers, support for the Court must
    come from those states who may individually lack the political
    or financial muscle of larger states; but whose united will and
    commitment to seeing justice done can challenge states who will
    try to interfere with, or sidetrack, the court’s work. At
    present the court enjoys a reasonable level of co-operation
    from its states parties even when they face pressure from the
    major powers not to co-operate with the court. This well of
    critical support must not be allowed to dry
    up.

    All states party to the ICC must take
    concrete steps to support the court, such as agreeing to
    provide the court with the budget it requires and entering into
    co-operation agreements, for example to accept the relocation
    of witnesses at risk for their testimony at the
    ICC.

    States can also support the court politically
    and diplomatically in a number of forums. It is vital that
    states call out the Security Council’s hypocrisy and address
    the political nature of the UN Security Council’s exercise of
    its power in referring (or not) cases to the Prosecutor of the
    ICC. This must be accompanied by a concerted push to reform
    this practice. These states should also actively pressure the
    Security Council to refer situations to the ICC, particularly
    those likely to be vetoed solely for reasons of
    realpolitik.

    It is also imperative for African states and
    other states from the global south to continue to encourage and
    pressure powerful states, including the US, Russia and China,
    to join the Rome Statute.

    Let’s be clear, 2017 will not make or break
    the ICC. But as it becomes more effective in achieving its
    promise as a truly “world court” by investigating alleged
    crimes committed on all continents, it will face ever greater
    challenges. These must be met by the court and its state party
    custodians if international justice is to be truly universal,
    effective and impartial.

    Civil society and member states, particularly
    those from the global South, must stand up and be counted in
    defending the court from new attacks, regardless of where these
    attacks may come from.
    DM

    Netsanet Belay is Amnesty International’s
    Africa Research and Advocacy Director and Matthew Cannock is
    Amnesty International’s Head of International
    Justice.

    Photo: Chief Prosecutor Fatou
    Bensouda waits for the start of the trial against former Congo
    vice president Jean-Pierre Bemba, his attorney and a Congolese
    lawmaker at the International Criminal Court in The Hague,
    Netherlands, 27 November 2013. EPA/Peter Dejong /
    POOL

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