South Africa files for divorce from the ICC: the thrill is gone

 

On 19 October 2016, South Africa formally requested to withdraw from the Rome Statute, the treaty that established the International Criminal Court (ICC).  With Cabinet approval and in accordance with Article 127(1) of the Rome Statute, the South African government sent an “instrument of withdrawal” letter to the United Nations Secretary-General explaining its intention.

The withdrawal should take effect in a year, though South Africa remains obligated to comply with the Rome Statute until the withdrawal is final. According to a press release, Minister of Justice and Correctional Services Michael Masutha highlighted irreconcilable differences: “the South African government has found its obligations, with respect to the peaceful resolution of conflicts, at times incompatible with the interpretation given by the ICC.”  The press release also noted how “[o]ther African Union member states have accused the ICC of unfairness in servicing its mandate. They claim the court is targeting African states over other members.”

Having been the first African country to accede to the ICC, is the thrill gone for South Africa?

The tripwire appears to be last year’s failure, and the attendant criticism of the South African government, to detain Sudanese President Omar Al Bashir when he was attending an African Union summit in Johannesburg.  Al Bashir is wanted by the ICC for alleged war crimes and crimes against humanity over atrocities allegedly committed in the Darfur conflict.  Al Bashir left South Africa even though the High Court in Pretoria had ordered authorities to prevent him from doing so. The state’s appeal against the High Court ruling was dismissed by the Supreme Court of Appeal.

According to Minister Masutha, South Africa has been hindered in exercising its international relations with foreign countries by the Implementation of the Rome Statute of the ICC Act, 2002 (Act No 27 of 2002), in that the Rome Statute compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the ICC, even in instances when South Africa is actively involved in promoting peace, stability, and dialogue in the countries involved. According to the press release, Minister Masutha said that South Africa wished “to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent.”1 For an excellent analysis on South Africa’s legal justification for withdrawing from the ICC, see the EJIL: Talk! post titled South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations? 22 October 2016, by Dapo Akande.

South Africa’s formal request comes at the heels of Burundi having decided to withdraw from the ICC.2 On 18 October 2016, the President of Burundi signed the law on withdrawal from the Rome Statute of the ICC; the “instrument of withdrawal” letter has yet to be deposited. Burundi’s reasoning for filing a divorce is different: the ICC’s alleged bias against the African states.3 For an insightful discussion of Burundi’s situation and intention to withdraw from the Rome Statute, see Justice in Conflict posts titled Burundi’s Awkward — and Mostly Pointless — Farewell to the ICC, 16 October 2016, and Transitional Justice Battlegrounds: Another Bad Week in Burundi, 22 October 2016, by Mark Kersten. See also Kersten’s recent post recalibrating his take on African states leaving the ICC, Some Thoughts on South Africa’s Withdrawal From the International Criminal Court, 26 October 2016.

africamapThe marital discontent of some African states with the ICC surfaced when Kenya’s President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto found themselves in the dock; a sobering realization that sitting heads of state are not immune from prosecution at the ICC.  Forget about the merits; the fact that the very same folks who signed on to the Rome Statute were now prone to being prosecuted at the ICC was disconcerting.  A rude awakening. With most cases originating from Africa, the argument goes that other heads of state could very likely find their heads on the proverbial chopping block.

To reconcile the dilemma of having both the sitting President and Deputy President in trial proceedings which could last years, the ICC adjusted the court’s practice and amended the ICC Rules of Procedure and Evidence (RPE)4 On 27 November 2013, the Assembly of State Parties amended Rule 134 by its resolution ICC-ASP/12/Res.7, allowing presence at trial via the use of video technology, and allowing excuse from presence at trial in exceptional circumstances or due to extraordinary public duties. to free heads of state from having to sit in court during the trial proceedings (see my previous posts on Rule 134 here and here).  However, notwithstanding these conciliatory adjustments, substantial efforts have been made to have cases from Africa dealt with in African courts: for example, though the creation of a special Criminal Court by the Central African Republic and the Extraordinary African Chambers in Senegal.5 Recently, Professor Carsten Stahn noted the revival of “hybrid” courts in international criminal justice in his insightful article in EJIL: Talk! titled Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity, 23 September 2016. See also the discussion of the Kenyan cases and the African Union’s relationship with the ICC in my post Just How Relevant is the ICC – Part VI.

Cutting against these perceived biases by the ICC is the recent referral by Gabon under Article 14 alleging crimes of genocide and crimes against humanity committed in post-election violence.6 See Referral under Article 14 of the Rome Statute submitted by the Gabonese Republic, 20 September 2016 (French only), and the Statement of the ICC Prosecutor concerning the referral. Scratch the surface, however, and one has to wonder whether this is politically motivated.  To some, the ICC is acceptable (and useful) as a forum of convenience and political expediency.  Gabon’s leading opposition figure Jean Ping, who held the position of President of the African Union Commission in 2008-2012, criticized and accused the ICC of “always target[ing] … Africans.” After his political rival Ali Bongo Ondimba won the August 2016 elections by less than two percent of the vote, Ping called on the international community to sanction those guilty in the “electoral coup” and welcomed the ICC investigations in Gabon. Some may find that the Gabon referral is a silver lining – an affirmation that the ICC continues to be relevant among the member states from Africa.7 See article by Stephen Lamony, Head of Advocacy and Policy, Coalition for the International Criminal Court, pointing out that most of the situations in Africa were referred by the State Parties, and suggesting that the threats of withdrawal from African countries may not necessarily become real: Justice in Conflict, Gabon Refers Itself to the ICC as Others Threaten to Withdraw, 19 October 2016.  See also post by Darryl Robinson, arguing that South Africa’s and other possible withdrawals do not undermine the ICC’s mission, in EJIL: Talk! Take the Long View of International Justice, 24 October 2016. Doubtful.

What has the ICC done wrong to South Africa for the thrill to be gone?8 A play on B. B. King’s immortal song The Thrill is Gone.

The ICC has faltered since its inception.

The ICC has faltered since its inception. As I have noted, its first prosecutor, Luis Moreno-Ocampo, squandered any good will the Office of the Prosecutor (OTP) may have had. Obviously the wrong person for the job, as his track record reflects and as demonstrated most recently by his comments in The New York Times that the “real” mission of the court is sending a message to prevent crime, the so-called “shadow of the court.”  But let’s be fair, not all is his fault. After all, most cases from Africa were referred by a State Party.  There are lots of reasons why the ICC is not living up to expectations.  The trial proceedings are not uniform, considering that the Rome Statute and the ICC RPE (Article 64(6)(a) in relation to Article 61(11), Article 64(6)(b) and (d), Article 64(8), and Rule 140(1)) have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous makeup of the Trial Chamber, the Trial Chamber can shape trials to be more “adversarial” or more “inquisitorial.”9 For example, Trial Chambers are divided on the issue of proofing witnesses: in the Lubanga, Ngudjolo, and Bemba cases, the Pre-Trial and Trial Chambers effectively prohibited witness proofing, while in the Ruto & Sang and Kenyatta cases, witness proofing is allowed to some extent. See Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, para. 40; Prosecutor v. Ngudjolo, ICC-01/04-01/07-1134, Decision on a Number of Procedural Issues Raised by the Registry, 14 May 2009, paras. 35-52, 57; Prosecutor v. Bemba, ICC-01/05-01/08-1016, Decision on the Unified Protocol on the Practices used to Prepare and Familiarize Witnesses for Giving Testimony at Trial, 18 November 2010, paras. 31, 34-35. See Prosecutor v. Ruto and Sang, ICC-01/09-01/11-524, Decision on witness preparation, 2 January 2013, para. 50; Prosecutor v.  Muthaura and Kenyatta, ICC-01/09-02/11-588, Decision on Witness Preparation, 2 January 2013, para. 52. Similarly, in Katanga & Ngudjolo and Ruto & Sang, leading questions on cross-examination are allowed, while in Gbagbo leading questions on cross-examination are prohibited. See Prosecutor v. Katanga & Ngudjolo, ICC-01/04-01/07-16665-Corr, TC II Corrigendum Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, Annex, 1 December 2009, para. 68; Prosecutor v. Ruto & Sang, ICC-01/09-01/11, Decision on the Conduct of Trial Proceedings (General Directions), 9 August 2013, para. 15; Prosecutor v. Gbagbo & Blé Goudé, ICC-02/11-01/15 T-14 ENG ET, Transcript, 4 February 2016, p. 3, lines 10-12. Not all judges are up to the task; why else would you have judges characterized into tiers based on their qualifications and abilities.10 For detailed analysis and criticism of judicial recruitment at international tribunals, see Michael Bohlander, The International Criminal Judiciary – Problems of Judicial Selection, Independence and Ethics, in International Criminal Justice: A Critical Analysis of Institutions and Procedures 325, 388-389 (Michael Bohlander ed., Cameron May 2007), observing “a worrying tendency at the international level to disregard [the] experience of practitioners and legal policymakers gained from the domestic context… [and] a lack of a uniform standard or profile for international judges.” High profile cases have disintegrated due to the lack of evidence, begging the question: why is the OTP putting accused through the judicial meat-grinder if it is clearly unable to meet its burden of proof?

The real reason for this discontent is the realization – since the Kenya cases – that sitting heads of state are not immune from prosecution.  That is the real crux of the problem.  But hold on: was not the ICC established to go after those most responsible – inclusive of whom are heads of state – for the crimes listed in the Rome Statute?  Now that the obvious has sunk in, South Africa has taken the lead with a creative legal justification that obscures the actual reasoning.       

With South Africa leaving the ICC, so may most of the other 33 African ICC member states. Perhaps the time has come for a re-think by the Assembly of State Parties on the future course of the ICC.  No doubt the flight of some African states will impact the ICC’s relevancy, putting greater pressure on it to shop around for cases to prosecute from other continents.  That said, unless the ICC improves its image and demonstrates that it can deliver the goods, a prosecutorial smorgasbord approach to investigating and prosecuting cases from non-African countries is unlikely to assuage many of the African states who are either fed up with the ICC or are pursuing regional and ad hoc alternatives.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “South Africa files for divorce from the ICC: the thrill is gone”

  1. The ICC was doomed from the very beginning. Its was just a matter of time until it would begin to disintegrate. It is now happening. The court costs millions of dollars to keep it afloat. It needs to be closed down. We can rely on Ad Hoc criminal tribunals to deal with international war crimes when it becomes necessary as we have very successfully done since creation of the ICTY. Every day that the ICC continues is simply a waste of time and money and a denigration of International Criminal Courts. Ad Hoc courts work very well. ICC does not.

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