By Sam Saunderson
WITH the African Union Summit set for 30-31 January early next year, it is important for Namibia to have an introspective view on its decision to quit the International Criminal Court.
The Namibian Cabinet has approved a recommendation by the ruling Swapo Party to withdraw from the International Criminal Court.
Information Minister Tjekero Tweya announced recently that Cabinet tasked the Ministry of International Relations and Cooperation to review the country’s foreign policy.
The call on the on the Ministry to review Namibia’s relations with the ICC comes after Swapo Party central committee decided to withdraw from the International Criminal Court.
It’s been a long, hard couple of months for the International Criminal Court (ICC) with the trouble which began with the announcement that Burundi would exit the court; it got worse when news broke that South Africa would follow suit; and, when the Gambia became the third African country to announce its intention to withdraw, it seemed that the ICC might face a fully-fledged African revolt. With the upcoming AU Summit, Namibia including other African countries must form a unison position on their relations with the ICC in view of accusations that the international criminal court mainly targets Africans.
Nonetheless, the international court is facing an unprecedented challenge to its credibility and legitimacy. How it responds will determine its survival in future.
The ICC’s long-term future requires it to allocate more resources to non- African situations
For the court and its backers, it is time to move beyond blame and recrimination and focus on what comes next. Where does the ICC go from here? And what steps can it take to get there? If the court is to remain a force for justice, then some things need to change. Here are some suggestions.
1. Get some non-African cases, and quickly
By far the most damaging argument is that the ICC is biased against Africans. While the structural factors that create this perceived bias are well understood, this does not necessarily excuse them. As the old English ruling goes: ‘Not only must justice be done; it must also be seen to be done.’ The simple statistic that only one non-African situation (Georgia) has been formally investigated in the ICC’s 14-year existence is damning in the extreme, regardless of the court’s constraints. There is an obvious fix. Get some non-African cases. A first step is to move forward with the Georgia case. The ICC opened a formal investigation in January 2016, eight years after the preliminary examination started.
A second is to put more energy into other non-African cases which are in the ICC’s preliminary examinations stage. These include Afghanistan, Colombia, Iraq/United Kingdom, Palestine and Ukraine. News that a full investigation in Afghanistan may soon be announced is encouraging.
Of course, this is easier said than done. The ICC is already extremely busy, and operates on limited resources. But it is now crucial to the court’s long-term existence that it allocates more of those resources to non-African situations, and makes sure that it is seen to be doing so.
2. Tackle the question of diplomatic immunity
South Africa’s instrument of withdrawal outlined the official reasons for its dissatisfaction. Chief among them was the conflict between diplomatic immunity, under customary international law, and the ICC’s requirement to arrest sitting heads of state facing charges in The Hague.
The visit of Sudanese President Omar al-Bashir to South Africa in 2015 was the test case. Despite local courts ruling to the contrary, South Africa’s executive branch maintains that diplomatic immunity trumps the ICC’s arrest warrant.
This question must be urgently clarified in international law and particularly among states parties to the Rome Statute. As it stands, the potential confusion provides a loophole where heads of state are concerned. For South Africa, this loophole provided convenient legal cover for its withdrawal, even though the decision was largely motivated by political rather than legal factors.
3. Work with the African bloc to keep them on board
No African country has actually exited the ICC yet, and it will be a year at least before Namibia (Namibia is still to formalise their decision to quit), Burundi and South Africa – both of which have formally notified the UN Secretary-General of their decisions to withdraw – are no longer parties to the Rome Statute. Until then, Burundi and South Africa are still bound by the Statute.
Besides, it is far from clear whether South Africa’s instrument of withdrawal is lawful, as Parliament did not approve it before it was lodged. Namibia and South Africa’s official opposition parties are challenging this. Be more strategic when prosecuting sitting heads of state
The ICC’s problems in Africa really began when it started going after sitting heads of state. Bashir was the first, and Kenya’s Uhuru Kenyatta the second (although he was charged before taking office). It’s no surprise that Bashir’s case is at the root of South Africa’s decision to withdraw, while Kenyatta has overseen a remarkably effective continent-wide campaign to discredit the ICC.
On a case by case basis, going after al- Bashir and Kenyatta appear to be good decisions. Both leaders were allegedly complicit in serious international crimes, and deserve their day in court. And this, after all, is what the ICC was created to achieve – accountability at the very highest levels.
Equally, there is no doubt that these prosecutions badly damaged the ICC’s reputation in Africa – and may potentially derail other African cases, ultimately doing more harm than good.
‘Of course, it’s great in theory, morally right, and lies at the heart of the ICC’s mission. But this is tricky territory for a new court trying to push legal frontiers on the most complex and controversial issues of international criminal law. There is something to be said for sequencing. Not immunity, but being more strategic about timing.
‘In retrospect, it might have been a better strategy to be more patient and focus on some of the other suspects first,’ says du Plessis.
It has been a bruising few weeks for the ICC on the African continent. But it’s not too late for the court to restore its damaged reputation and win back African allies, who were once among its most enthusiastic supporters.
Confidente. Lifting the Lid. Copyright © 2015