International Criminal Court ,

• Burundi civil society sees the International Criminal Court as a last resort for justice

  Human rights defender Cyriaque Nibitegeka speaks to CIVICUS about Burundi’s withdrawal from the International Criminal Court and the implications for human rights and victims of human rights abuses. Nibitegeka is one of the leaders of civil society in Burundi. He is also a lawyer and member of the Burundi Bar. He was a professor at the Law Faculty of the University of Burundi before being dismissed for his human rights activities.

• ICC urged to resume its investigation into alleged crimes against humanity in the Philippines

  Honourable Karim A. A. Khan QC
  Prosecutor
  The Office of the Prosecutor
  International Criminal Court
  Oude Waalsdorperweg 10, 2597 AK Den Haag, Netherlands

  To ICC Prosecutor Karim A. A. Khan

  We, human rights organisations working on the Philippines, call on your office to resume its investigation into alleged crimes against humanity, in relation to the country’s ‘war on drugs’.

  In its 10 November 2021 letter, the Philippine Government raised issues of complementarity, citing that it has domestic mechanisms in place to investigate the killings. However, we reiterate concerns that of an estimated tens of thousands killed in the ‘war on drugs’, only a small number were covered in the review of documents by the country’s Department of Justice. Of these cases, the Justice Department cited only procedural errors, and most police officers involved in human rights violations merely received suspensions, raising concerns on the Philippines’ commitment to justice.

  The government likewise refuses to investigate the national policy landscape that enabled these killings, including the National Police Commission’s Memorandum Circular, which launched Operation Double Barrel, implementing the President’s ‘war on drugs’. On this account, the highest officials most responsible for the widespread human rights violations are escaping official domestic investigations.

  The Philippines’ human rights record speaks for itself. There has only been one criminal conviction out of the huge number of estimated extrajudicial killings. The government continues to refuse to work with the National Human Rights which has done intensive investigations into many cases of such killings.

  To date, there has been no independent body established and relatives of victims remain fearful of reprisals should they cooperate with independent investigations.The country’s President has incited violence against his critics while assuring protection to the police officers involved in the ‘war on drugs’. In light of this, what we see is a government that has used domestic mechanisms only to shield perpetrators from international accountability.

  We reiterate that the ICC investigation has wider implications beyond the Philippines. When the investigation was announced, it sent a message of hope to victims in the country and across the region where people continue to face State-sponsored violence. Civil society had hoped that the ICC would serve as a deterrent to human rights atrocities perpetrated by many authoritarian leaders across Asia. However, an order of deferment may be used to incite a disregard for international accountability.

  We have, over the past five years, documented cases of extrajudicial killings, enforced disappearances, and other crimes against humanity. We work with victims, who, until this day, are afraid to speak because of the real threat of reprisals. The ‘war on drugs’ has expanded into a war on civic space and a war against its people, where critics and civil society opposing the ‘war on drugs’ have been systematically targeted.

  As perpetrators of these violations once again try to take power in the coming 2022 national elections, any deferment poses risks that this cycle of impunity will only continue. The ICC was established to provide justice to victims of the gravest violations. We remain committed in supporting the Court in the pursuit of this mission.

  Signatories

  Asian Forum for Human Rights and Development (FORUM-ASIA)
  BALAOD Mindanaw
  CIVICUS: World Alliance for Citizen Participation
  Karapatan Alliance Philippines
  DAKILA - Philippine Collective for Modern Heroism
  Human Rights Online Philippines (HRonlinePH)
  In Defense of Human Rights and Dignity Movement (iDefend)
  LILAK (Purple Action for Indigenous Women's Rights)
  Philippine Alliance of Human Rights Advocates (PAHRA)
  Philippine Human Rights Information Center (PhilRights)
  Task Force Detainees of the Philippines (TFDP)

  Civic space in the Philippines is rated as repressed by the CIVICUS Monitor

• Victims of human rights violations will be worst affected if South Africa exits the International Criminal Court

  CIVICUS speaks to Angela Mudukuti about South Africa’s withdrawal from the International Criminal Court, the implications for human rights and justice and the work which the Southern Africa Litigation Centre is doing on this issue. Angela is a lawyer with the International Justice Programme at the Southern Africa Litigation Centre. Angela is involved in advocacy around international criminal justice issues and strategic litigation, including taking the South African government to court for failure to arrest President Bashir of Sudan

  1. What do you think motivated South Africa’s withdrawal from the International Criminal Court (ICC)?

  The state seems to advance a number of misplaced excuses for withdrawal in its legal papers and media statements. This includes the allegation that the ICC is targeting Africa, which is of course unfounded as evidenced by the number of self-referrals and the fact that the ICC has preliminary examinations in Afghanistan, Iraq for example. The state also alleges that its commitments to the Rome Statute are a hindrance to peace and security efforts in Africa yet this too does not make any sense as South Africa has been engaged in peace and security initiatives for several years “despite” the obligations in terms of the Rome Statute. South Africa signed the Rome Statute in 1998 and ratified it in 2000 and not once has the Rome Statute been raised as a hindrance to peace-keeping efforts. It is only since the arrival of President Omar Al Bashir in 2015 that South Africa has had problems with the ICC. Thus it cannot really be about peace-keeping as South Africa does not have to host suspected perpetrators in South Africa to successfully conduct peace-keeping activities. They have been involved in mediation efforts since former President Thabo Mbeki’s time and not once have they needed to host President Bashir in South Africa. In fact they explicitly declined to do so in 2009 when President Bashir was expected to attend the 2009 inauguration of President Jacob Zuma. It was made publically clear that President Bashir would be arrested if he came to South Africa and as such he did not come to South Africa in 2009.

  The arguments of the state seem to be labouring under the misconception that withdrawal will allow them to host President Bashir, yet as made clear by article 127 of the Rome Statute, the obligations of state party do not evaporate because it decides to leave the Rome Statute, thus South Africa is still duty bound to arrest President Bashir for as long as he is wanted by the ICC. The state has failed to provide justifiable and reasonable excuses for leaving the Rome Statute thus the only plausible explanation was an unfortunate political explanation that only the government itself could provide.

  2. What do you think is motivating the antipathy of several African states towards the ICC?

  The allegation that the ICC is targeting Africa is the main reason advanced by a number of African leaders. Yet as described above this is not factually accurate. In addition to the fact that this is because of a lack of understanding about the jurisdictional limits of the Court it is also an excuse that is conveniently used by politicians to further their political agenda instead of prioritising justice, accountability and the victims of international crimes. While the ICC is not a perfect institution, it requires support and critical yet constructive engagement from member states.

  3. What are the likely implications on human rights and justice for victims of human rights violations?

  South Africa leaving the ICC will have serious implications for justice and human rights. It sends the wrong message to the victims of crimes. It also shows that South Africa has chosen to support impunity given its failure to arrest President Bashir and the fact that they seek to abandon the only permanent international criminal court instead of constructively engaging with it. South Africa could potentially become a safe haven for suspected perpetrators of genocide, war crimes and crimes against humanity as the government seeks to repeal the Implementation Act which domesticates the Rome Statute and includes a provision on universal jurisdiction. Should the Implementation Act be repealed a lacuna will be created which could be exploited by potential perpetrators of heinous crimes. In addition, if justice fails at the domestic level, there is no African Court with criminal jurisdiction and if South Africa successfully leaves the ICC, there will be no justice at the international level either. This creates an untenable situation which will leave the victims with nowhere to turn.

  4. How is civil society in South Africa responding to the withdrawal?

  The Southern Africa Litigation Centre (SALC) is actively involved in legally challenging the constitutionality of South Africa’s notice of withdrawal. The matter was heard in the High Court on December 5 and 6 and the court reserved judgment. SALC will also continue with advocacy to raise awareness and sensitise the general public on the importance of supporting international criminal justice as the move to repeal the Implementation Act should go through the parliamentary process which also includes a process of public participation. Hence it is vital that the general public understand the importance of supporting international criminal justice. Civil society is also actively supporting the development and improvement of domestic justice mechanism as the ICC was designed as a court of last resort and will only function as such if domestic systems are willing and able to deal with international crimes. Though the Rome Statute does not recognise regional courts, civil society are actively seeking to promote credible, impartial regional courts that will not provide immunity for heads of state or senior government officials as we see justice as a three-layer system where each layer functions in a complementary fashion.

  5. What are three things South Africans need to know about the ICC as an institution of justice for victims of human rights violations?

  a) South Africans need to know that the ICC is an impartial and independent court with limited jurisdiction.
  b) They should also know that without the support of the African states, the court may not have come into existence in the first place and thus it is more constructive to work towards improving the ICC instead of simply abandoning it.
  c) South Africans should also know that regionally there is no African court with criminal jurisdiction and thus if domestic justice fails it is the ordinary citizens who will have no access to justice.

  Visit the Southern Africa Litigation website - http://www.southernafricalitigationcentre.org/