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”…

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