Monthly Archives: October 2016

Some additional thoughts on African withdrawals from the ICC

It has been a few days since Burundi and South Africa announced that they were withdrawing from the ICC. I commented on the issue when first hearing the news. Since then, Gambia has joined these two States (and some predict that more will follow). Since then, there has been a wave of international reactions which have triggered the following reactions of my own.
  • does this issue deserve such reactions?
I must say that I’m particularly surprised at the international reaction to the withdrawals of Burundi, South Africa and now Gambia. Of course, it’s a major event for the ICC itself, but that this not necessarily mean that it would get attention from mass media as well. This shows that, on some level, the ICC has managed to make itself part of the conversation, which I suppose it can be congratulated for.
But it also shows that this is all symbolic and an exercice in PR. Indeed, arguably, the concrete effects of the ICC in world affairs since its creation is incidental. At best it has deflected attention from actual discussions about stopping the commission of mass atrocities (as I argued here in relation to Syria).
I know some friends which have researched this issue extensively might disagree, but I think that if you did a counterfactual scenario of how things would be in the world if the ICC did not exist, I’m afraid the world, and even the situation countries where the ICC is actually investigating, would sadly look more or less exactly as it does now…
A number of reactions share the hyperbolic idea that these African States are betraying victims around the world. This is a peculiar statement on a number of levels.
First of all, it suggests that the ICC is solely about the victims. For example, this is how the EU Statement on the issue describes the ICC: ” The International Criminal Court (ICC) is a key institution to assist citizens achieve justice when confronted with the most serious crimes, where this is not possible at the national level”. Unsurprisingly for those who follow this blog regularly, I disagree. The ICC is not some administrative body that “assist citizens achieve justice”.  Criminal law is triggered in the name of a community as a whole, not individual victims. Ironically, as I pointed out on twitter, claiming to bring justice to millions of victims, while a PR victory on some level (see above), is probably the biggest PR mistake that the ICC has made. The ICC, even at the best of its efficiency, will never bring justice to millions of victims worldwide. It cannot possibly do that, especially if by justice, we mean something broader than just criminal punishment (see the difficult discussions on reparations in the Lubanga and Katanga cases). As aptly put by Thijs Bouwknegt:
Second of all, behind this moral judgment, there is some kind of implication that the ICC is the only international legal instrument dealing with international crimes. That is of course not the case. The international legal framework applicable to international crimes is still there, more particularly, the States that have withdrawn from the ICC still have a certain number of duties to prosecute under customary law for a vast array of international crimes. And as mentioned above, it’s not like the ICC had achieved that much in the past 15 years…
Third of all, when it comes to the ICC, if anyone has betrayed victims, it’s the OTP, not individual States. Indeed, in 14 years of existence, the ICC has rendered 5 judgments for 4 convictions, which have all been frought with controversy in terms of the choice of charges (See Lubanga and the question of sexual violence and the Al Madhi case who was charged with what is essentially a victimless crime), quality of investigations and evidence (see Lubanga and Katanga) or poor legal construction of the case (see Katanga and Bemba). And all this without even mentioning serious fair trial concerns. It’s not South Africa’s fault that the OTP has decided to give Colombia as much time as possible in preliminary examination, while rushing head first into other situations. It’s not South Africa’s fault that Nigeria has been under preliminary examination for 6 years now or that it took 3 years for the OTP to issue a one-page rejection of the 2009 Palestinian 12(3) declaration that a first year international law student could have written.
  • Do ICL commentators have to have a position?
One last point: it seems that a lot of commentators don’t only comment, but also express (explicitly or implicitly) a  clear opposition to withdrawals. I was not going to react to that, because I’m used to it by now, but then I saw this extremely interesting question by Barrie Sander on Twitter:

I think this question reveals a real problem in a international criminal scholarship: that a number of authors have a normative bias towards the system, be it positive (most of the time) or negative (on occasion). This is even true of some Crits, who more often than not do have some normative agenda, as I’ve argued here.

I’ve always thought that scholars should not have a normative agenda when analysing particular questions. What I mean by that is that their possible normative preferences (which everybody has I suppose) cannot be a methodological tool to research a question.

In line with this, I would say that I neither “support” or “oppose” withdrawal from the ICC. I personnally do not care what these States do. The real question is how I assess their conduct, i.e, what methodological/disciplinary angle do I adopt to comment on what is going on. For example, as I’ve said before, I consider that from an international law perspective, the case law of the ICC is contrary to customary law in relation to immunities. Which means that I agree, from a legal point of view, with South Africa’s position that abiding by ICC case law could lead it to violate other obligations under international law. But it does not mean that I “support” their withdrawal from the Court. Another example, suggested on twitter by Barrie Sander, is that one can very well challenge some assumptions about how ICL works and what is should or can achieve, without being “for” or “against” ICL from a normative point of view. Our job is to identify the logical inconsistencies of a field, not to support or oppose it. In the same way, it’s not because I find some of the critics of South Africa misplaced that I “support” South Africa…

This question clearly goes beyond the issue of some African countries withdrawing from the ICC, but it is a fundamental question because it ultimately, I believe, affect the credibility of the commentator and more importantly the relevance of the analysis put forward. Also, normative biases often go hand in hand with a complete absence of self-reflection and doubt (which is at the heart of the scientific method according to Descartes, among others), which can lead to blindness about actual challenges to that particular normative project, which in turn can only weaken it. As I pointed out in my previous post, I think that the arrogance of some defenders of ICL about its inevitability and moral superiority will ultimately be its downfall… a downfall I neither “support” nor “oppose”…

South Africa (and Burundi) to withdraw from the ICC?

Last week, the Burundi Parliament voted a withdrawal of their country from the ICC. a few days ago, the President of Burundi apparently signed a decree to take this decision a little closer to being a reality. Yesterday, it appears that South Africa initiated the process of leaving the Court as well.

These two possible withdrawals raise a number of interesting questions, both legally and politically.

In terms of the applicable legal framework, the first (obvious) point to note is that such a withdrawal is indeed allowed by the Rome Statute, under Article 127.

The second point to note is that annoucements by governments or decisions  adopted by domestic bodies are not sufficient for a withdrawal to take effect. Article 127(1) provides that:

A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

Therefore, without a notification to the UNSG, there can be no withdrawal. It seems that South Africa (but not Burundi) has deposited such a notification. It should be noted that the question of the domestic legality of a withdrawal is a different issue (on South Africa, see initial thoughts from Richard Goldstone here).

In terms of the legal consequences of a withdrawal, I refer you to the excellent post by Alex Whiting over at Just Security where he discusses whether Burundi leaving the Court would have an effect on the Prosecutor’s capacity to investigate and prosecute crimes that took place before the withdrawal takes effect. As Alex recalls, this issue is covered by Article 127(2) of the Rome Statute which provides that:

Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

As an aside on this point, Alex Whiting says in his post that: “the preliminary examination stage is not formally mentioned in the Rome Statute, but is simply implied from the Prosecutor’s obligation to assess whether certain jurisdictional and admissibility requirements have been met before commencing an investigation”. This is only true in the case of State or UNSC referals. However, Article 15, which applies the Prosecutor is considering opening an investigation proprio motu, explicitly mentions the existence of “the preliminary examination” (Article 15(6)). It makes sense that the Rome Statute would explicitly recognise such an phase in the context of Article 15, because in that case there is a formal judicial review of the Prosecutor’s examination in order for her to be able to start an investigation.

One last point that could favour a more limited, rather than broad interpretation of Article 127(2), is the formulation used in other versions of the Rome Statute. For example, the French version of the Statute says that: “le retrait n’affecte en rien la poursuite de l’examen des affaires que la Cour avait déjà commencé à examiner avant la date à laquelle il a pris effet”. The word “affaires” (cases) seems narrower that “any matter”. This is obviously not decisive and a comparison in the other official language could be interesting (comments on this welcome).

Politically, my first question is whether this is all a coincidence. It seems improbable that independently from each other, these two african States would decide to drop such  political bombshells the same week. And if there was indeed some form of coordination between South Africa and Burundi, one can wonder if other countries will follow. In any case, it does put a dent in the idea the Burundi would be isolated, or a “pariah”, as Mark Kersten put it in a blog post last week.

Second, the reactions to the withdrawal, if effective, are likely to be unsurprising: any criticism of the ICC is usually seen as a handful of bloodthirsty dictators trying to escape Justice. This is of course partly true, I’m not naive. However, this should not prevent us from either taking seriously some criticism of the ICC or trying to understand political consequences of such withdrawals.

In relation to the ICC, for example, I’ve argued for years that the ICC’s case law on immunities is disastrous, poorly argued and contrary to international law (see my paper on this here). On this point, I find South Africa’s reaction perfectly reasonable: basically, they are saying that this is not what they signed up for (putting aside the domestic legislation issue), and therefore are withdrawing from the Court. Another example: I’ve always had sympathy with the position taken by Judge Kaul in the Kenya cases that the organisational threshold for crimes against humanity should be higher than just a handful of people coming up with a plan (see my thoughts on this here). This means that the Court would not have jurisdiction for certain situations of post-electoral violence for example and one can legitimately consider that the ICC should not intervene in such situations. As far as I know, Judge Kaul was not a bloodthirsty dictator.

On a more fundamental level, The debate simply cannot be reduced to a simple manichean anti-impunity/pro-impunity dichotomy, in such complex situations following structural human rights violations or civil conflict. One should be able to question the underlying assumptions of the ICL project about the benefits of prosecutions in a broader transitional justice context. I’m still not convinced that there is in fact any such benefit and one should be able to discuss this point without being portrayed as a genocide apologist. In the case of South Africa, one can wonder for example if the TRC model, supported by so many until now, would be accepted by the ICC, notably within the framework of complementarity? I think that it wouldn’t.

Finally, the withdrawals, again if they become effective, are interesting on another level: they challenge a (slightly arrogant) tendency of the Human Rights/ICL movement to present their narrative of progress as inevitable. That is simply not true. No political project is inevitable (just ask the Romans…). Particularly in relation to ICL, I do think that the proponents of international tribunals and the ICC underestimate (or willfully ignoring) the fact that these institutions face the risk of being marginalised and ultimately irrelevant. Maybe one day, we will look back on this period and see it as a “moment” of international justice which ended like all previous “moments” of international justice: drowned out by the reality of international relations.