On 19 October 2016, South Africa formally requested to withdraw from the Rome Statute, the treaty that established the International Criminal Court (ICC).\u00a0 With Cabinet approval and in accordance with Article 127(1) of the Rome Statute, the South African government sent an \u201cinstrument of withdrawal\u201d letter<\/a> to the United Nations Secretary-General explaining its intention.<\/p>\n 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<\/a>, Minister of Justice and Correctional Services Michael Masutha highlighted irreconcilable differences: \u201cthe 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.\u201d \u00a0The press release also noted how \u201c[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.\u201d<\/p>\n Having been the first African country to accede to the ICC, is the thrill gone <\/em>for South Africa?<\/p><\/blockquote><\/div>The tripwire appears to be last year\u2019s 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.\u00a0 Al Bashir is wanted by the ICC<\/a> for alleged war crimes and crimes against humanity over atrocities allegedly committed in the Darfur conflict.\u00a0 Al Bashir left South Africa even though the High Court in Pretoria had ordered authorities to prevent him from doing so. The state\u2019s appeal against the High Court ruling was dismissed<\/a> by the Supreme Court of Appeal.<\/p>\n 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 \u201cto 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.\u201d(( For an excellent analysis on South Africa\u2019s legal justification for withdrawing from the ICC, see<\/em> the EJIL: Talk!<\/em> post titled South African Withdrawal from the International Criminal Court \u2013 Does the ICC Statute Lead to Violations of Other International Obligations?<\/em><\/a> 22 October 2016, by Dapo Akande.))<\/p>\n South Africa\u2019s formal request comes at the heels of Burundi having decided to withdraw from the ICC.(( On 18 October 2016, the President of Burundi signed the law on withdrawal from the Rome Statute of the ICC<\/a>; the \u201cinstrument of withdrawal\u201d letter has yet to be deposited.)) Burundi\u2019s reasoning for filing a divorce is different: the ICC\u2019s alleged bias against the African states.(( For an insightful discussion of Burundi\u2019s situation and intention to withdraw from the Rome Statute, see <\/em>Justice in Conflict posts titled Burundi\u2019s Awkward \u2014 and Mostly Pointless \u2014 Farewell to the ICC<\/em><\/a>, 16 October 2016, and Transitional Justice Battlegrounds: Another Bad Week in Burundi<\/em><\/a>, 22 October 2016, by Mark Kersten. See also <\/em>Kersten\u2019s recent post recalibrating his take on African states leaving the ICC, Some Thoughts on South Africa\u2019s Withdrawal From the International Criminal Court<\/em><\/a>, 26 October 2016.))<\/p>\n 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\u2019s practice and amended the ICC Rules of Procedure and Evidence (RPE)(( 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 <\/em>my previous posts on Rule 134 here<\/a> and here<\/a>).\u00a0 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<\/a> by the Central African Republic and the Extraordinary African Chambers in Senegal<\/a>.(( Recently, Professor Carsten Stahn noted the revival of \u201chybrid\u201d courts in international criminal justice in his insightful article in EJIL: Talk! <\/em>titled Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity<\/em><\/a>, 23 September 2016. See also <\/em>the discussion of the Kenyan cases and the African Union\u2019s relationship with the ICC in my post Just How Relevant is the ICC \u2013 Part VI<\/em>.<\/a>))<\/p>\n 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.(( See <\/em>Referral under Article 14 of the Rome Statute submitted by the Gabonese Republic<\/a>, 20 September 2016 (French only), and the Statement<\/a> of the ICC Prosecutor concerning the referral.)) Scratch the surface, however, and one has to wonder whether this is politically motivated.\u00a0 To some, the ICC is acceptable (and useful) as a forum of convenience and political expediency<\/a>. <\/em>\u00a0Gabon\u2019s 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 \u201calways target[ing] \u2026 Africans.\u201d<\/a> After his political rival Ali Bongo Ondimba won the August 2016 elections<\/a> by less than two percent of the vote, Ping called on the international community to sanction<\/a> those guilty in the \u201celectoral coup\u201d and welcomed<\/a> the ICC investigations in Gabon. Some may find that the Gabon referral is a silver lining \u2013 an affirmation that the ICC continues to be relevant among the member states from Africa.(( See <\/em>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<\/em><\/a>, 19 October 2016.\u00a0 See also <\/em>post by Darryl Robinson, arguing that South Africa\u2019s and other possible withdrawals do not undermine the ICC\u2019s mission, in EJIL: Talk! <\/em>Take the Long View of International Justice<\/em><\/a>, 24 October 2016.)) Doubtful.<\/p>\n What has the ICC done wrong to South Africa for the thrill to be gone?<\/em>(( A play on B. B. King\u2019s immortal song The Thrill is Gone<\/em><\/a>.<\/em>))<\/p>\n The ICC has faltered since its inception.<\/p><\/blockquote><\/div>The ICC has faltered since its inception.\u00a0As I have noted<\/a>, 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 \u201creal\u201d mission of the court is sending a message to prevent crime, the so-called \u201cshadow of the court.\u201d<\/a>\u00a0 But let\u2019s be fair, not all is his fault. After all, most cases from Africa were referred by a State Party.\u00a0 There are lots of reasons why the ICC is not living up to expectations.\u00a0 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))\u00a0have 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 \u201cadversarial\u201d or more \u201cinquisitorial.\u201d(( For example, Trial Chambers are divided on the issue of proofing witnesses: in the Lubanga<\/em>, Ngudjolo<\/em>, and Bemba<\/em> cases, the Pre-Trial and Trial Chambers effectively prohibited witness proofing, while in the Ruto & Sang<\/em> and Kenyatta<\/em> cases, witness proofing is allowed to some extent. See Prosecutor v. Lubanga<\/em>, ICC-01\/04-01\/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, para. 40; Prosecutor v. Ngudjolo<\/em>, 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<\/em>, 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<\/em> Prosecutor v. Ruto and Sang<\/em>, ICC-01\/09-01\/11-524, Decision on witness preparation, 2 January 2013, para. 50; Prosecutor v.<\/em>\u00a0 Muthaura and Kenyatta<\/em>, ICC-01\/09-02\/11-588, Decision on Witness Preparation, 2 January 2013, para. 52. Similarly, in Katanga & Ngudjolo<\/em> and Ruto & Sang<\/em>, leading questions on cross-examination are allowed, while in Gbagbo<\/em> leading questions on cross-examination are prohibited. See Prosecutor v.<\/em> Katanga & Ngudjolo<\/em>, 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<\/em>, ICC-01\/09-01\/11, Decision on the Conduct of Trial Proceedings (General Directions), 9 August 2013, para. 15; Prosecutor v. Gbagbo & Ble\u0301 Goude\u0301<\/em>, 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.(( For detailed analysis and criticism of judicial recruitment at international tribunals, see<\/em> Michael Bohlander, The International Criminal Judiciary \u2013 Problems of Judicial Selection, Independence and Ethics<\/em>, in<\/em> International Criminal Justice: A Critical Analysis of Institutions and Procedures 325, 388-389 (Michael Bohlander ed., Cameron May 2007), observing \u201ca worrying tendency at the international level to disregard [the] experience of practitioners and legal policymakers gained from the domestic context\u2026 [and] a lack of a uniform standard or profile for international judges.\u201d)) 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?<\/p>\n The real reason for this discontent is the realization \u2013 since the Kenya cases \u2013 that sitting heads of state are not immune from prosecution.\u00a0 That is the real crux of the problem.\u00a0 But hold on: was not the ICC established to go after those most responsible \u2013 inclusive of whom are heads of state \u2013 for the crimes listed in the Rome Statute? \u00a0Now that the obvious has sunk in, South Africa has taken the lead with a creative legal justification that obscures the actual reasoning.\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0<\/em><\/p>\n 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.\u00a0 No doubt the flight of some African states will impact the ICC\u2019s relevancy, putting greater pressure on it to shop around for cases to prosecute from other continents.\u00a0 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<\/em> alternatives.<\/p>\n![\"africamap\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/10\/AfricaMap.jpg?resize=218%2C231&ssl=1\")
<\/a>The marital discontent of some African states with the ICC surfaced when Kenya\u2019s 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.\u00a0 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.\u00a0 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.<\/p>\n
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