The United Nation High Commissioner for Human Rights has strongly rebuked African states wanting to withdraw from the International Criminal Court (ICC) while at the same time praising African nations for being strong supporters of the court during its formative stage.
The High Commissioner for Human Rights did not name any particular African country in his hard-hitting speech on Wednesday, but his statements come nearly one month after South Africa wrote to the United Nations Secretary-General to withdraw from the ICC. When South Africa began the process to withdraw from the ICC in late October, it became the first member state to do so.
The same week South Africa sent what it described as “instruments of withdrawal,” dated October 19, Burundi’s parliament voted to repeal the country’s law on crimes against humanity, genocide, and war crimes. That law was drawn from the ICC’s founding law, the Rome Statute. Burundi’s president assented to the repeal of that law, and the government wrote to the UN Secretary-General to withdraw from the ICC on October 27. Gambia is another African country that has indicated in the past month it wants to withdraw from the ICC and communicated its intent to the UN Secretary-General on November 10.*
“We meet today in a long shadow cast, yet again, by some State Parties seeking to desert the Court, to desert victims of the most abominable international crimes, to desert all of us who worked so hard and for years on its behalf,” said Zeid Ra’ad al Hussein, the UN High Commissioner for Human Rights.
“If the State Parties, who apparently have been masquerading in recent years as countries devoted to criminal accountability, want to leave, then they should leave,” said Zeid during the formal opening on Wednesday of the annual meeting of countries that are members of the ICC. This annual meeting is formally called the Assembly of State Parties (ASP), and this year it is being held in The Hague, the city where the ICC is based.
In recent years, the idea of African members of the ASP withdrawing as a bloc from the court has been discussed at the biannual summits of the African Union.
African leaders began discussing withdrawal after the ICC issued an arrest warrant in 2009 for Sudan’s President Omar al-Bashir for war crimes and crimes against humanity he is alleged to have committed in Sudan’s western region of Darfur. (A second arrest warrant for al-Bashir was issued in 2010 for the crime of genocide.) The idea of an African pullout of the ICC gained further impetus when Uhuru Kenyatta became Kenya’s president in March 2013 while he was facing crimes against humanity charges at the ICC. William Ruto, who was Kenyatta’s running mate and became Kenya’s Deputy President, also faced crimes against humanity charges at the ICC. The charges against Kenyatta and Ruto have since been terminated.
One reason African leaders have called for a mass exit from the ICC is the claim that the court is biased against Africa because all ongoing cases before it involve Africans. Another criticism African leaders have made of the ICC is that the cases before it complicate efforts to peacefully resolve conflicts on the continent and reconcile people who have been fighting each other. This is the main reason given for the African Union’s demand that the arrest warrant against al-Bashir be suspended.
“But we are not convinced their position is based entirely on principle. Quite the opposite: it appears to aim more at protecting their leaders from prosecution,” said Zeid.
“Yet although the powerful may fear the Court, victims, everywhere, plead for its involvement. Victims of core crimes will struggle to understand why they are abandoned by these States – together with those which never acceded (to the Rome Statute) – and why they are made victim again, as the withdrawals deny their right to remedy and redress,” Zeid said.
He called on member states of the ICC to resist attempts to amend the Rome Statute to grant heads of state and heads of government immunity from the prosecution. Article 27 of the Rome Statute states that no government official has immunity from prosecution at the ICC irrespective of their rank. Zeid said this principle “is prime, is existential for the Statute’s Court.”
Immunity from prosecution for leaders has also been the subject of discussion at the African Union’s biannual summits. At an October 2013 summit focused solely on the ICC, African Union leaders resolved that serving heads of state and their deputies should be granted immunity from prosecution while they remained in office.
As stinging as his criticism was of African countries that are withdrawing from the ICC, Zeid had high praise for the contribution of African countries in the formation of the ICC. He said African countries had been “the backbone” of the ICC and shown leadership in the early days of the court that was “majestic.”
“When, at the Rome conference, the US delegation, under pressure from Congress, launched a blistering attack against the independence of the Prosecutor, it produced a stunned silence among us,” said Zeid. The Rome conference Zeid is referring to took place in 1998, and at its conclusion participating countries agreed to a law establishing the ICC. At the time, Zeid was Jordan’s Deputy Permanent Representative to the UN.
“Not a sound was heard in the red room at the FAO [Food and Agriculture Organization of the United Nations] headquarters, and it lasted a long time. Who was going to respond, and how? We looked at Norway, and they were staring down at their papers, scarcely moving. We turned anxiously to The Netherlands, and they were just staring at Norway!” said Zeid.
“Finally, a flag went up, and we all swiveled in the direction of the delegate from Malawi, who calmly, elegantly and deftly sketched out lines of legal reasoning powerful enough to save the moment, to our delight and relief,” continued Zeid.
“That is the Africa we needed then, it is the Africa we need and want today, and I am pleased many African countries, including Botswana, Cote d’Ivoire, Nigeria, Malawi, Senegal, Tanzania, Zambia and Sierra Leone have signaled they will not leave,” said Zeid.
He said the challenges facing the court today are not the first stern test it has faced. He said new challenges may emerge out of the changing world, and Zeid called on all member states to remain firm in supporting the ICC.
“Do not betray the victims, nor your own people. Stand by the Rome Statute and the Court. 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,” said Zeid.
*This paragraph has been updated. The original version stated that only South Africa had formally communicated its withdrawal to the UN Secretary-General, when Burundi and Gambia had as well.