At the recent summit of the African Union (AU), states adopted what appeared to be a plan to withdraw from the International Criminal Court (ICC), the global body that prosecutes grave crimes and challenges impunity. This followed the announcement in 2016 by three states, Burundi, the Gambia and South Africa, that they would pull out of the Court, although the Gambia’s new president, Adama Barrow, subsequently reversed his country’s position. While the prospects could seem bleak for the ICC, Netsanet Belay, Africa Director, Research and Advocacy of Amnesty International, suggests that there are reasons to be more optimistic.

1. What is the current state of play on African withdrawal from the ICC?

Contrary to what many believe and what is being reported, 2016 saw a tempering of the rhetoric of African mass withdrawal from the ICC. While people expected a domino effect following last year’s decision of Burundi, the Gambia and South Africa to withdraw from the ICC, the outcome went in the opposite direction. Since the last Assembly of State Parties to the ICC in November 2016, many African states unequivocally rejected calls for mass withdrawal. A number of countries, including those who had been silent supporters, publicly affirmed their support of the ICC. This includes Botswana, Burkina Faso, Côte d’Ivoire, Democratic Republic of Congo, Ghana, Lesotho, Mali, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania and Zambia.

Building on this momentum, at the 28th AU Summit in January 2017, many African countries effectively refuted any myth of mass withdrawal. While the AU Summit adopted what is called a mass ‘withdrawal strategy’, it is actually nothing like this. To the contrary, the strategy sets out a roadmap for engagement with the ICC and other stakeholders. It makes clear that the concept of mass withdrawal is not recognised under international law and clarifies that if member states chose to withdraw, they should do so according to their domestic mechanisms. Further, many states - Cape Verde, Liberia, Malawi, Nigeria, Senegal, Tanzania, Tunisia and Zambia - made reservations on the decision. Others, notably Nigeria, opposed the adoption of this strategy.

What this is telling us is that what once looked like a trend of mass withdrawal by African nations is not there. Those countries that were silent before are now saying they will not stay silent any more and will support the ICC. The Gambia’s return is also a significant game-changer for a number of reasons: it was the only misfit in West Africa, a region that’s traditionally a staunch supporter of the ICC. The Gambia is also the human rights capital of Africa, given it is the seat of the African Commission on Human and Peoples’ Rights. Burundi and South Africa are left alone at the moment, and they need to use this opportunity to change their minds.

But despite the tampering of anti-ICC rhetoric in Africa, we should not downplay the legitimate concerns that African member states have about the ICC. The Court is a far from perfect institution. There are legitimate questions to be raised about why the ICC has not progressed on its preliminary investigations on non-African situations

The role of the UN Security Council (UNSC) and the politicised nature of referrals is also a very important question that should be addressed – not by the ICC but by the UNSC itself. As we saw with the failures on Syria, South Sudan and elsewhere, the UNSC is in dire need of reform and needs to be engaged.

There are also legitimate reform proposals on the table with respect to the Rome Statue system that sets out the ICC’s rules and procedures. For instance, weeks before its decision to withdraw, the South African government tabled a proposal on the development of rules and procedures for consultation processes with ICC members, under Article 97 of the Rome Statute. One of South Africa’s concerns was the lack of a clear process on consulting with the ICC when the country was faced with a dilemma on whether to arrest Sudanese president Omar al-Bashir when he attended the AU Summit in South Africa in 2015. The government felt that the procedures were not clear enough and suggested clearer procedures. The organisation I represent, Amnesty International, agrees that there is a gap there that needs to be filled and has proposed recommendations on how this proposal should be taken forward.

2. Outside Africa, what are the current or emerging threats to the ICC?

The biggest threat approaching for the ICC and international justice globally seems to from powerful nations outside Africa, as the Court moves to undertake preliminary examinations and ultimately investigations on crimes committed in Afghanistan and Palestine. The ICC has been investigating crimes committed in Palestine by Israeli forces as well as Palestinian armed groups, and in Afghanistan, by members of the Taliban, Afghani forces and US nationals, including allegations of torture. If reports are correct, the ICC is very close to opening an investigation into crimes under international law committed in Afghanistan in particular, which could possibly result in some US nationals facing prosecutions. Even though the US is not a member state of the ICC, because the crimes were committed in Afghanistan, a member state, US citizens suspected of committing crimes there might face prosecution. This move is likely to face stiff political challenge and backlash from the US.

Already we see signs of countries putting pressure on the ICC about its examination on Palestine. Israel is lobbying a number of European governments. In a possible sign of things to come, at the last Assembly of States Parties session, the ICC was squeezed on its budget to its absolute limit by the Court’s key financial contributing states, including Canada, France, Germany, the UK and others.

So the next biggest threat to the ICC will come from outside Africa, from powerful nations in the global north. Hence all the more reason why the global south, including Africa, which has been demanding a balancing of ICC prosecutions, should strongly support the ICC at a time when it is becoming more courageous.

3. What other challenges does the current global context offer?

Broadly speaking, with the rise of toxic populist agendas in US and Europe, global accountability and human rights mechanisms are facing threats. We are increasingly seeing the US, for instance, threatening to withdraw its financial and political support to the UN. The deadlocks at the UNSC continue and can be expected to worsen, enabling mass atrocities to continue unabated. There is also the UK’s eventual withdrawal from the European Union, including from the European Human Rights Convention. All of these point to what I would call the normalisation of indifference in the face of mass atrocities. This indifference is growing. One possible outcome of this trend will be weakening of international accountability mechanisms, including the ICC. This is another reason why civil society needs to come together to stand in support of these mechanisms.

4. What can civil society in South Africa and Burundi do?

South Africa has a dynamic and engaged civil society and, amidst the threats, there are clear opportunities emerging to defend international justice. Despite the recent High Court decision that revoked the Government’s notification of withdrawal, there are concerns that the government might press on with its withdrawal agenda. The government has tabled a draft bill for the repeal of the Rome Statute Implementation Act, the act that domesticates the Rome Statute, and has also announced its intention to introduce a new draft Bill on International Crimes to replace it. As draft bills are opened for pubic consultation, civil society has an immediate task and responsibility to engage with these processes and engage the government and members of parliament in challenging the decision to withdraw from the ICC.

Beyond engagement with government, there is more pressing need for public awareness campaigns. Views are quite polarised in South Africa, as elsewhere, about the ICC: to some extent state propaganda has worked and quite a significant part of the population believes what the government is saying, that the ICC is a western, imperialist tool that is attacking Africa. Civil society’s starting point should be to demystify the facts from the myths and win people’s heart and minds. For example, not a lot of people know that the reason so many African cases have come before the ICC is because of self-referrals by African states. Civil society needs to explain why the ICC was created and how it operates, as a court of last resort. South Africans need to know the historic, moral and legal implications of withdrawal, including the fact that this nation stands to withdraw from one of the few international instruments that codifies apartheid as a crime against humanity. For a country that has lived through that experience and a nation that was born out of such crime, and as a nation that led the creation of the ICC to ensure that such a crime will not happen again anywhere in future, it cannot afford to withdraw. Now more than ever, South Africa leadership in promoting justice and human rights is needed in the global arena.

Burundi, on the other hand, is a very different context. It is quite a closed country, and there are hardly any spaces for people and civil society express dissent. The motive of the government for withdrawing from the ICC is partly self-serving: it is protecting itself from future prosecutions. This is a whole different challenge and civil society will not find it easy to engage with the government to shift thinking about that. I see more difficulties in Burundi than in South Africa.

5. What about regional alternatives?

Nobody, including civil society, is challenging the advantage and significance of having a regional accountability mechanism. In principle, it is to be welcomed, as an additional accountability mechanism where people can obtain redress and victims seek justice, and where African-specific contexts can be addressed. The Malabo Protocol – the AU’s agreement to extend the jurisdiction of the African Court on Human and People’s rights – goes beyond the ICC’s four core crimes, of genocide, crimes against humanity, war crimes and crime of aggression, to criminalising transnational crimes such as corruption, illicit financial flows and terrorism. This shows a lot of potential.

The problem is that the proposal as it currently stands has several problematic legal and institutional implications. The fact that the Protocol stands to give immunity from prosecution to heads of state and senior government officials while they are still in power is a serious deviation from international standards on accountability, and also contrary to the AU’s own constitutive act, which champions a complete rejection of impunity. A deviation from this ideal is regressive. It would only embolden dictators who commit atrocities and human rights violations to remain in power. Secondly the definition of some of the transnational crimes is problematic and violates the international principle of legality. For example, terrorism is vaguely defined. The risk of peaceful dissent being criminalised as terrorism remains high. In Africa, there are so many living examples where peaceful dissent is being crushed as terrorism, so this is a huge risk.

Apart from legal standards, the second issue is the implication of adding a criminal jurisdiction to an already existing, heavily under-resourced and weak human rights court, given that the proposal is to expand the jurisdiction of the African Court. The new Court, if and when it becomes operational, would have a human rights mandate, a general affairs mandate and a criminal mandate. There is no such comparable model out there. It's a heavy and ambitious undertaking, and an expensive and complex venture. As such, it is highly doubtful that the continent will have the right political will and sufficient financial and other resources to enable this proposed Court to succeed.

The proposal also runs the risk of weakening the existing human rights mandate of the African Court. For instance, the number of judges currently proposed under the Malabo Protocol means a reduction in the number of judges that will be dealing with human rights issues. Already the current African Court is overloaded with casework, and reducing the number of judges will undoubtedly have a heavy impact on the capacity of the court to deliver on human rights protection needs in the continent. The proposal might also hamper or slow down future ratifications of the statues of the only existing human rights court in Africa. Member states may only be presented with the option to ratify and domesticate all of the successive amendments as outlined under the Malabo Protocol, and will not be able to pick and choose which instrument to adopt and ratify. As such, countries that do not want to commit to the expansion of the current court to have a criminal jurisdiction but want to strengthen the human rights jurisdiction of the exiting Court will not be able to do so easily.

So broadly, while in principle the decision to establish a regional criminal court is a good idea, there are a number of legal and institutional implications of the current proposal that may necessitate rethinking the model and discussing substantive amendments before member states rush to sign and ratify the Malabo Protocol. In any case, as a viable alternative to the ICC, and a permanent international justice mechanism, it is not there yet.

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