Gambia follows South Africa’s ICC exodus: quelle surprise

 

The Islamic Republic of The Gambia announced late Tuesday 25 October 2016 that it was withdrawing from the International Criminal Court (ICC), or as Gambian Information Minister Sheriff Bojang characterized it, “the International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”1 See also the statement of the Information Minister Sheriff Bojang on Gambian television posted on YouTube by the news agency The Fatu Network, 25 October 2016, available online here.

The reason for Gambia’s departure is apparent.  About a two-thirds of the African states that have signed the Rome Statute that established the ICC view the ICC as a Western court targeting Africans while giving a pass on westerners who are believed by some African heads of state to have been involved in war crimes and crimes against humanity. Former British Prime Minister Tony Blair, as far as Gambia is concerned, is a prime example of a Western leader (or former leader) who should be in the ICC dock for his role in the Iraq war.  Fat chance.

In my previous post I predicted that with South Africa leaving the ICC, other African states would follow.

In my previous post I predicted that with South Africa leaving the ICC, other African states would follow. Gambia’s lighting departure is unsurprising.  The issue of the ICC targeting only Africans has been festering for some time.  And it will not simmer down any time soon – even if the ICC Prosecutor Fatou Bensouda were to succeed in getting some quick indictments from other continents; no small feat considering how time-consuming and complex it is to go from investigating a case to confirmation of charges.rats-jumping-ship2 See my previous post discussing the new Policy Paper on Case Selection and Prioritisation, ICC-OTP sets out its vision: a look at the horizon, 13 October 2016. See also a recent post by Christine Schwobel on Opinio Juris, The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It), 28 October 2016.

Many African leaders see a pernicious and persistent double standard, an aversion by the ICC to investigate and prosecute Western (Caucasian) and non-African leaders. But I dare say that this is more of a pretext and not the root cause.  As I have noted before, my take is that there is a sobering realization that heads of state are fair game for the ICC.  What is a strongman such as Gambia President Yahya Jammeh (who has been characterized as eccentric and ruthless) to do?  Somewhat naïve of such heads of state to have signed on to the Rome Statute in the first place.  Now that the chickens are coming home to roost, and having little leverage to game the process if charged, the time seems ripe to extricate themselves from the ICC’s grip.

Gambia’s exodus must be particularly distressing for Ms. Bensouda.  She is from Gambia.  She is reported to have been Chief Legal Adviser to President Yahya Jammeh after he seized power by orchestrating a coup in 1994.  She served as President Jammeh’s Minister of Justice from 1998 to 2000.3 See Ms Fatou Bensouda’s Biography on the ICC web here. She holds her position as ICC Prosecutor in part because of President Jammeh; he would have had to support her candidacy when she ran to be elected ICC Prosecutor, and no doubt he lobbied for her with other states, most notably African states. In fact, so the open secret goes, Ms. Bensouda was elected, in part, because she hailed from Africa and, it was perceived, would thus be more sympathetic and sensitive to the complaints of African leaders that the ICC was solely targeting Africans. With Ms. Bensouda at the helm, so the thinking went, she would either stem the tide of African prosecutions or at least initiate proceedings against non-Africans.

ocampo-and-bensouda
Luis Moreno-Ocampo, Fatou Bensouda

This was wishful thinking – at least in the short term. Ms. Bensouda, though number two under the now infamous first prosecutor Luis Moreno-Ocampo, inherited the Titanic headed for an iceberg.  Try as she has, it takes time to change course.  Cases that were in line for prosecution had to proceed.  And as we now know, several had to be dismissed or were dismissed.

The bigger story, however, is not so much that Gambia has joined South Africa (and Burundi) in jumping the ICC ship, but how relatively easy it is for State Parties to the ICC to uncouple themselves from their obligations under the Rome Statute.  If the ICC has an Achilles heel, this is it.

johnackermanIn a comment to my post on South Africa, John Ackerman – a defense lawyer extraordinaire and old ICTY hand – eloquently noted many of the problems with the ICC and why it may, in the long run, suffer the same fate as the League of Nations.  In Ackerman’s words:

The ICC was doomed from the very beginning. It 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.

Perhaps.  He is right about one thing, the ad hoc tribunals have proved to be much more nimble and effective, and thus, conceivably, more suitable for dealing with the sort of crimes the ICC was envisaged to handle.

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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.

2 thoughts on “Gambia follows South Africa’s ICC exodus: quelle surprise”

  1. Dear Mr. Karnavas:

    Thanks for the insights into this tumultuous times for the ICC.

    Like anything in existence, no system is perfect. With all due respects to fellow attorneys and extraordinaire in the field, removing the ICC for reasons that do seem logical and most admirable, one being the cost to keep it afloat, is one way of thinking. On the other hand, the community fought with teeth and nails coming up with the Rome Statute and the Court, all that work for nothing is hard to swallow. Perhaps there could be a reform into the vision of the court and a form of outreach program to close the gaps between the membership countries and the court. What lies here, in my opinion, is a disconnect that led to distrust. Trust in any system is most important.

    Thank you,

    West,

  2. Africans and their leaders should stop the false pretense. They know what they are running from and cannot justifiably claim the ICC is discriminating, targeting them. Rather, they should compare their leadership crimes and those of leaders outside Africa and question what they are doing so wrong that attracts the wrath of the International gabble. A look at current leadership in Africa speaks volumes of egregious violations across the continent and it would be insufficient to focus on such crimes without including financial crimes. If African leaders were to be consistent, they would have begun questioning certain of their comrades behavior long before now. ICC should continue its work and broaden into investigating and putting on trial leaders outside Africa as well as broadening the scope of crimes under investigation. Put simply, leadership in Africa has made the continent a living hell for many unsuspecting citizens.

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