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.
Spreading the Jam 
