Member countries of the International Criminal Court (ICC) should protect the court’s ability to fully and fairly provide justice for the worst international crimes, Human Rights Watch said today. Recent withdrawals from the court by three African countries raise concerns that ICC members will offer concessions on the court’s core principles at their annual meeting from November 16 to 24, 2016, in a misguided effort to deter other countries from leaving the court.

In October and November, the governments of Burundi, Gambia, and South Africa withdrew from the ICC treaty, the Rome Statute. The withdrawals take place amid a backlash within some African countries against the ICC, emanating from Sudan and Kenya. Leaders of both countries have faced charges before the court, and the African Union (AU) has called for the immunity from prosecution of sitting heads-of-state and other high-level officials. 

The International Criminal Court premises in The Hague.

© 2016 Human Rights Watch

“The ICC withdrawals risk becoming a bargaining chip by countries looking to make the world safer for abusive dictators,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “But a number of African states have already signaled they have no intention of leaving the court, and all ICC members should make clear that the court’s mandate is not up for sale.” 

Nigeria, Senegal, Botswana, Ivory Coast, Malawi, Sierra Leone, and Zambia, in the wake of the withdrawals, publicly indicated their opposition to ICC withdrawal. Two hundred organizations wrote to the presidents of all African ICC members on November 14, 2016, to call for their governments to continue to support the ICC. The organizations include well over 100 local groups based in more than 25 African countries and 100 groups from the Democratic Republic of Congo alone, in addition to international organizations. 

ICC member countries should reaffirm their support for the court in statements during the annual Assembly of States Parties meeting, particularly during its high-level opening segment, Human Rights Watch said.

Not allowing an individual’s official position in government to shield them from prosecution, a feature of international courts since the post-World War II trials at Nuremberg, is fundamental to the court’s mission to ensure justice for the worst crimes. Letting sitting leaders off-the-hook would create perverse incentives for some to try to hold onto power indefinitely to avoid prosecution. 

Such a change would not address the real gaps in the credibility of the international justice system, including political blockages within the United Nations Security Council and the failure of key powers like the United States to sign on to the treaty, Human Rights Watch said. 

“Double-standards in the reach of justice need to be addressed,” Evenson said. “But the answer is expanding where the ICC can work and insisting on consistent action by the Security Council on justice. Opting out or crippling the ICC’s ability to try sitting officials will only curtail justice for victims of the worst crimes.” 

Negotiations to challenge the ICC’s ability to prosecute sitting leaders could unfold at the Assembly of States Parties meeting. Other assembly action, short of amendments to the founding treaty, such as resolutions, still run the risk of being seen to interfere with the judges’ independence, Human Rights Watch said. 

Member countries will have a number of other important matters before them at the meeting, including setting the court’s budget and enhancing countries’ cooperation with the court. Human Rights Watch, in a briefing note with recommendations for member countries, said that ICC members should hold a special session at the 2017 meeting to take stock of the court’s achievements, while addressing what additional political support is needed to bolster its role. The ICC treaty will celebrate its 20th anniversary in 2018. 

The assembly’s leadership body should ensure steps are taken to address recent judicial findings of noncooperation in the ICC’s investigations and prosecutions. This includes a finding by the judges that the government of Kenya failed to fully cooperate in the now-withdrawn case against President Uhuru Kenyatta. 

African countries led efforts to establish the ICC in the 1990s, pushing accountability for atrocity crimes to the front of the international agenda. The ICC has faced various efforts to scuttle its work since its treaty took effect in 2002. The US administration of George W. Bush initiated the first challenge. Between 2002 and 2005, Washington actively discouraged countries from joining the ICC, as well as coercing countries to enter into what became known as “bilateral immunity agreements” to protect US nationals from prosecution before the court. 

The ICC is the world’s first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The Rome Statute created the Assembly of States Parties to provide oversight of the court’s administration. It consists of representatives of each member country and is required to meet at least annually. 

In withdrawing from the ICC, the government of South Africa cited a purported conflict between its ICC obligations and its ability to interact with leaders in its role as a regional peace broker. A South African court found that the government violated its domestic and international legal obligations when it failed to arrest ICC fugitive President Omar al-Bashir of Sudan during his visit to the country for an AU summit in June 2015. Al-Bashir is wanted by the ICC on two warrants of arrest, for alleged crimes of genocide, war crimes, and crimes against humanity committed in Sudan’s Darfur region.

The court’s jurisdiction over alleged international crimes may be triggered in one of three ways. ICC member countries or the Security Council may refer a situation, meaning a specific set of events, to the ICC prosecutor, or the ICC prosecutor’s office may seek on its own motion authorization by a pretrial chamber of ICC judges to open an investigation.

Investigations in Central African Republic, Democratic Republic of Congo, Mali, and northern Uganda were opened at the request of the government. Situations in Darfur and Libya were referred by the Security Council, while the ICC prosecutor made the request to the ICC judges to open the investigations in Cote d’Ivoire, Georgia, and Kenya. 

The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Burundi, Colombia, Gabon, Guinea, Nigeria, Palestine, alleged abuses by United Kingdom armed forces in Iraq, and Ukraine. 

“It is sad to see South Africa’s government standing with the ideologues of the early Bush years,” Evenson said. “At a time of deep divisions and multiplying human rights crises around the globe, the ICC is needed more than ever and ICC members should protect it."