Reaction: World rallies around ICC in face of withdrawals

UN Secretary General Ban ki Moon and his predecessor Kofi Annan have called for reconsideration of ICC withdrawals. © UN Photo
Opposition to ICC withdrawals is growing, with African and global civil society, governments and eminent personalities uniting to support the Court and its reforms in the light of criticism.

The Gambian information minister’s announcement last week that the West African country intends to withdraw from the ICC is detrimental to many African victims of grave international crimes search for justice.

Citing a perceived anti-African bias in ICC prosecutions, the message mirrored rhetoric used by the governments of South Africa and Burundi, both of which have now delivered official notifications to the UN Secretary-General of their intent to withdraw from the Rome Statute system. 

Countering falsehoods

In reply, civil society was quick to point out that the Court is far from only focused on Africa. The International Federation of Human Rights (FIDH) was among those to question the rationale provided by the withdrawing African governments.

“Current investigation into crimes committed in Georgia, and advances in the preliminary examinations opened in Afghanistan, Palestine, Ukraine and Iraq/UK, among others […] indicate that the OTP will not shy away from exercising its jurisdiction over international crimes, even when those crimes may have been committed by individuals from major world powers,” said FIDH.

Many have labelled the allegations against the ICC and the Office of the Prosecutor (OTP) as misleading. Others have also noted the intensifying danger to victims’ access to justice posed by statements like that coming out of The Gambia.

“The [Gambian] Information Minister’s statement regarding the Court’s persecution and humiliation of people of colour, especially Africans could not be further from the truth. For many Africans the ICC presents the only avenue for justice for the crimes they have suffered” said Amnesty International.

Notions of anti-African bias have long been rejected by ICC officials, including ICC Prosecutor Fatou Bensouda, who is herself a national of The Gambia and underlines that the Rome Statute and the evidence available guides OTP investigations and case selection practices.

“[…] it is the evidence that guides us. It is not all this other criteria. When we open investigations, it means that our criteria have been met, that the crimes have taken place and it is grave enough to warrant the intervention of the ICC. It is not against the interests of justice to intervene in these situations, where no national proceedings are ongoing with respect to those crimes. This is what we look for before we determine whether to open investigations or not,” the ICC prosecutor told the International Bar Association.

This is not to say that the ICC is perfect - access to global justice remains uneven. However, The Elders—which includes former UN Secretary-General Kofi Annan, Archbishop Emeritus of Cape Town and Nobel Peace Laureate Desmond Tutu, and international women’s and children’s rights advocate Graça Machel - called on countries considering withdrawal “to change course and instead fight for much-needed reform from within, as members.”

Withdrawals impact victims the most

Figures from the Coalition have continued to campaign for a strong, united global response to these withdrawals.

“Victims across Africa have called for justice time and again, either through national judicial systems or, when they fail, through the ICC. The Zuma government is demonstrating a terrible disregard for victims and the powerless in South Africa, throughout Africa and the world” said William Pace, Convenor of the Coalition for the ICC.

UN actors not officially associated with the ICC shared the concern that focus was being taken away from victims:

“The Court was not built to defend the strong and the powerful it was built to protect the victims and any attack on it no matter what the accusation is ultimately is an attack on victims themselves” said Prince Zeid bin Ra’ad Zeid al-Hussein, UN High Commissioner for Human Rights.

Others warned of the potenital for even graver consequences. The former ICC prosecutor has stated that the argument of African bias is only a cover-up that “should not be considered as an argument but rather as an alibi to ignore crimes and it should be exposed as such.”

“This is not just an African problem, and it would be wrong to frame it as such. Over the past few years, nationalism has been growing across all the continents. Brexit was the most recent and vivid example. Venezuela withdrew from the Inter American Human Rights Court in 2013, and now three countries are walking away from the Rome Statute. Technological evolution without global institutions will send humanity back to tribalism” said former ICC prosecutor Luis Moreno Ocampo.

Increasing numbers of African governments are publically reaffirming thei rbleif in the Court's vital role in securing justice for the most vulnerable in society: 

“The Government of Botswana does not […] associate itself with calls for States Parties to withdraw from the Rome Statute. Botswana believes that such a move betrays the rights of the victims of atrocious crimes to justice and also undermines the progress made to date in the global efforts to fight impunity,” said the Botswana Ministry of Foreign Affairs and International Cooperation.

The ICC is not going away

Others warned that, though the withdrawals do not threaten an end to the ICC, advocates for global justice must counter falsehoods being spread, respond to legitimate criticism and fight for the Court in domestic politics:

“The ICC is not going away. Even if another dozen or so states pull out, that would leave around 110 members from all over the world, a substantial global quorum. The ICC still has vigorous supporters, including in Africa. But advocates for justice should be concerned—and there is much to be done” said James Goldston, Director of the Open Society Justice Initiative.

"We regret this decision to leave and we hope that the dialogue is open among state parties in order to find a solution that ensures a right to life, a right to justice, a right to reparations are effective concepts on our continent of Africa” said Clément Capo-Chichi, CICC Africa Regional Coordinator.

The Elders, an independent group of global leaders working for human rights, released a statement urging all states to fully commit to the ICC to strengthen its credibility and effectiveness:

“The ICC should be a source of hope to those victims of serious abuses whose domestic judicial systems have let them down. Unfortunately however the perception in parts of Africa and elsewhere that the Court is not impartial, and that big powers who are not members apply double standards, is undermining its credibility and effectiveness” said Kofi Annan, Chair of the Elders and former UN Secretary-General.

The last surviving prosecutor of the Nuremburg Trials, however, was confident that the withdrawals are only the latest trough in the gradual progress of the world towards global justice:

[These events are] not the dissolution of international law [but] the downward spoke of a spiral that goes down and comes up again. The amount of progress we have made is fantastic from the perspective of a man who has been working on this all of my life. It will take a while and what you are describing are the ups and downs which are ineveitable, regrettable and the longer they delay the more pain and suffering” said Ben Ferencz, the last surviving prosecutor of the Nuremburg Trials.

Perhaps as many as ten African governments can already be counted on to continue their support for the Court and their divergence from the recent withdrawal announcements. Among these, Botswana and Sierra Leone have especially most vocal.

Increasing numbers of African administrations are declaring their support for the Court, adding their voices to the scores of statements already made around the world.

At the UN General Assembly on 31 October, Nigeria affirmed its "continous commitment to support and cooperate with the Court", while Senegal invited all States Parties to do the same. On the same day, the government of Tanzania stated that the establishment of the ICC “became an inspiration against impunity and injustice. The promise and hope is still relevant today, if not more urgent.” 

“Just because three states are leaving does not mean Africa is leaving,” said the Sierra Leone ambassador to The Netherlands at African Legal Aid’s seminar and book launch last week for “The International Criminal Court and Africa: One Decade On”.

The Ivory Coast has also stated that it has no intention of leaving the ICC:

“These are sovereign decisions, but Côte d’Ivoire has no intention of following the route [of Burundi, South Africa and The Gambia]”, affirmed Ivorian president Alassane Ouattara.

On Sunday, the UN Secretary-General called on South African President Jacob Zuma to push his government to reconsider its decision to withdraw from the ICC. Governments, academics, and civil society from Africa, as well as from around the world, continue to join the protest against the constitutionality of this regressive move from a country previously at the forefront of the fight for global justice.