Africa Withdrawing from the ICC

Following years of negotiation and many failed attempts to create supranational and international tribunals in a bid to harmonize the laws of war, a diplomatic conference of 120 states held in Rome adopted the Rome Statute of the International Criminal Court on July 17, 1998. The statute did not come to force until July 1, 2002 when it was ratified by 60 states as required by article 126 of the statute. The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.

The International Criminal Court was established to deal with the four core crimes as the crimes that shall not be subject to any statute of limitations. It can however, only investigate and prosecute the crimes in situations where the member states are unable or unwilling to do so themselves. Its jurisdiction extends to crimes committed in the territory of a state party, committed by a national of a state party or in other jurisdictions as authorized by the United Nations Security Council.

Till date there have been 23 cases before the Court, with some cases having more than one suspect. The ICC judges have issued 29 arrest warrants with 8 persons being detained in the ICC detention centre (thanks to cooperation from States) and have appeared before the Court. 13 persons remain at large while charges have been dropped against 3 persons due to their deaths. The judges have issued 4 verdicts: 3 individuals have been found guilty and 1 has been acquitted.

Thirty-one of Africa's 53 nations are signatories to the Rome Statute that establishes the Court's authority. This number means that the ICC has jurisdiction in nearly one third of African States. This has not resonated well with African leaders who point out that more than three quarters of the cases before the ICC are against leaders from the continent, despite atrocities being carried out by the west all over the world. Since its inception, the ICC has opened inquiries involving nine nations, all if which except one being African: Kenya, Ivory Coast, Libya, Sudan, Democratic Republic of Congo, Central African Republic (twice), Uganda, Mali and, most recently, Georgia. To this end, the African Union has passed a protocol to expand the jurisdiction of the African Court on Human Peoples' Rights (ACHPR) to include international crimes as an African alternative to the ICC. The member states have also supported a proposal by Kenya to have African States withdraw from the Rome statute to protest what they feel is 'discriminatory prosecution'.

Article 127 of the Rome Statute however, provides that state parties must pull out one by one. Withdrawal from the ICC starts with a state party writing a notification of the intention to withdraw to the UN Secretary-General. The state party then has to wait for a year before the withdrawal comes into force. Domestically, the process of withdrawing from a treaty should commence with Executive deliberations which then directs the cabinet members responsible for foreign affairs and Justice (attorney-general) to set up the appropriate instruments. The matter is then pushed as a motion to the legislature whose vote will effect the notification of intention to withdraw.

Only Benin, Congo, Guinea-Bissau, Kenya, Ghana, Sierra Leone and Mauritania have signed the protocol expanding the jurisdiction of the Arusha-based court to include international crimes. However, none of the signatories has ratified the protocol in their respective parliaments. The protocol requires the ratification of 15 countries to take effect.

On the ICC front, Burundi is the only country to have passed both the Executive resolution and the parliamentary vote and are thus on course to becoming the first country to withdraw from the Rome Statute. The country slid into political crisis after Pierre Nkurunziza won a third term as president, which many called unconstitutional. Since announcing his candidacy in April 2015, violence has left more than 500 dead and forced more than 270,000 people into exile. A U.N. report accused Bujumbura of being responsible for serious human rights violations, systematic and consistent, and warned against possible "crimes against humanity" and a "great danger of genocide." The crisis prompted ICC prosecutor Fatou Bensouda to launch a preliminary investigation in April into murder, torture and rape in particular.

One of the key campaigners of the move, Kenya, is yet to kick start the official process however. Despite the national assembly passing a motion to withdraw from the Rome Statute, it remains to be seen as to whether the Executive will pass a resolution to initiate the procedure. The country collided with the ICC after the prosecution of six witnesses, two of whom are now the President and Deputy President, for crimes committed during the 2007/08 post election violence. Ethnic clashes broke out in the country in the wake of the opposition's call for election rigging and thousands of lives were lost while hundreds of thousands were displaced.

The ICC prosecutions have not gone without resistance either. In Sudan, Omar Hassan Ahmad Al-Bashir refused to present himself to the courtroom to answer ten counts of crimes against humanity alleged to have been committed in Darfur, Sudan between 2003 and 2008. The pre-trial chamber has since issued to warrants of arrests, one in 2009 and another in 2010, but the case remains stalled as the suspect is still at large. The warrant can only be executed by member states when the Sudanese President is within their jurisdiction which has further worsened the relationship between the ICC and the African States. One Such state is South Africa, which recently announced its intention to withdraw from the Rome Statute. The country had signaled its discontent last year over criticism that it had ignored an order by the tribunal to arrest President Omar Hassan al-Bashir. Mr Bashir was allowed to leave South Africa after a visit in 2015, even though a local court had ordered the government to prevent his departure because of a warrant for his arrest.

In the end, this seems like the beginning of a massive walk out by the African states as the debate grows beyond the countries which have been directly indicted. The end result would see anarchy prevailing in war-torn African states as the Protocol to expand the jurisdiction of the Arusha-based African court is yet to be ratified (since it requires 15 states to ratify the protocol for it to be operational). In as much as there has been much criticism, the ICC successfully sentenced Jean-Pierre Bemba Gombo (President and Commander in chief of the military outfit Mouvement de Libération du Congo "MLC") for war crimes of rape and pillage committed in the Central African Republic between 2002 and 2003. Eyebrows are raised however on cases involving the west for example the Iraq/UK case which was closed in 2006 and re-opened under pressure in 2014 but still stagnates at preliminary examinations.

In conclusion, Africa would be a little justified in their quest to withdraw from the ICC but the same would come at an expense to the citizens of the withdrawing states. Unless Africans are assured of an alternative then the consequences of denouncing the jurisdiction of the court would be dire especially in times of civil unrest. Furthermore, it goes without saying that the leaders of the countries in the frontline of the agenda seem to have a personal interest on the matter as if to say they don't want the court to interfere NEXT TIME!!

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