Withdrawal or Reform: The International Criminal Court and the Call for Accountable Equality

The International Criminal Court (ICC), housed in The Hague, provides the international community with the means to investigate, prosecute, and try individuals accused of carrying out the world’s most grievous crimes. Specifically, the Court is mandated to try perpetrators for “genocide, war crimes, crimes against humanity, and the crime of aggression” on an individual, rather than at the group or state level. Not only does the court provide much needed accountability for those who have committed atrocious crimes, it also provides victims with an avenue for justice and, in some cases, reconciliation.[1]

As with any multilateral organisation, the ICC has not been without its fair share of international criticism. Concerns and critiques about the Rome Statute have existed ever since the Court’s inception. However, 2016 has seen a renewed wave of discontent, and with it, the reinstatement of former complaints. As early as February, members of the African Union were reported to have suggested a Kenyan-led initiative to withdraw from the Court, due to the perception that the ICC unfairly targets the African continent.

In a statement, Uhuru Kenyatta, the Kenyan president, declared that African nations “refuse to be carried along in a vehicle that has strayed off course to the detriment of our sovereignty, security and dignity as Africans.” This contention echoed earlier comments from Tedros Adhanom, who, while speaking for the AU at a November 2015 meeting for the ICC, declared that the court was “no longer a court for all.”[2] In spite of encouragement from ICC supporters both in Africa and elsewhere around the world, the ICC has experienced recent denouncements from five separate countries, all of whom wish to abandon (or at least staunchly denounce) the Court.

Gambia, Burundi, and South Africa have all declared their intention to withdraw form the ICC this year, and rumour has it that Kenya and Namibia may not be far behind. For Gambia, however, this suggestion may ultimately be overturned by newly elected President Adama Barrow, who has declared that there is in fact no reason for Gambia to leave the Court. Indeed there are other African nations that favour remaining a part of the Court, namely, Botswana, Zambia, Tanzania, Malawi, Sierra Leone, Senegal, and Nigeria.[3] Overall, while there is not yet an overarching consensus among members of the AU, the flames of discontent do appear to be growing.

This trend appears to be true both on the African continent and internationally. In mid-November of this year, multiple news sources reported that representatives in Moscow had also declared an intention to withdraw from the ICC. Russia indicated that withdrawing its signature was seen as the best option for “the national interest,” and that concerns were mounting over the high cost and relatively low yield of verdicts over the Court’s tenure.[4] While the withdrawal of support from the Kremlin is may not affect the Court either in terms of jurisdiction or functionality (given that Russia had not ratified the Rome Statute), the potential policy implications and their affect on other members could be more serious.

Even more recently, Philippine president Rodrigo Duterte has simply brushed off speculation that Western nations may seek to indict him for his role in what Reuters termed a “bloody crackdown on drugs.” Not only did he declare the threats to be “bullshit,” he took issue with the United States, given that Washington has not ratified the Rome Statute and is therefore not a state party to the Court. The subject of more serious concern for some analysts was the fact that Duterte nonchalantly argued that there is nothing wrong with the idea of killing people in his fight against drug use, and that he is furthermore willing to “rot in jail” in order to achieve his goals.[5]

With the growing onslaught of criticisms from states worldwide, the ICC will likely face tough times ahead. Regardless of personal or political perspectives, however, the question of the equality and accountability of the ICC is a fair and important one. The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, was quick to rush to the Court’s defence at his keynote speech to the Assembly of State Parties to the Rome Statute in November of this year. He highlighted the increasingly uncertain worldwide security paradigm, and expressed concern that “the turmoil yet to face humanity may be far greater than any challenge we have yet experienced.” He further argued that the ICC was the proper and best way to “safeguard our societies by standing firm on the principles of justice which anchor this institution.” He further noted that the current challenges facing the Court are not the first, and will not be the last, but indicated that the maintenance of support for the ICC is the international community’s best opportunity to safeguard justice and the rule of law for future generations.[6]

Fatou Bensouda, the ICC’s chief prosecutor, poignantly added to the conversation when she argued that the greatest threat to victims still suffering from the after-effects of  war crimes and crimes against humanity is to “see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a ‘pro-Western’, ‘anti-African’ Court,” and that the ICC was established to serve as “a shield for the powerless, not a club for the powerful.”[7]

The effects of states’ withdrawal from the court and the implications for human rights and the rule of law have yet to be seen. Ultimately, the end result may not be realized for many years to come, given the daunting, and occasionally tedious process of institutional and bureaucratic reform. According to the Institute for Security Studies, however, the answer to the question of withdrawal is simple: “universal justice cannot be achieved if countries leave the ICC.” What the Court needs to see now is “less dialogue about dialogue; more action.”[8]