Africa: The ICC is as strong as the support it receives from states

Analysis
By Allan Ngari

The establishment of the International Criminal Court (ICC) 20 years ago marked the beginning of the end of an era of impunity for genocide, war crimes and crimes against humanity. The ICC was established – five decades after the end of the Second World War – by the Treaty of the Rome Statute and adopted by 120 states

Peter Lewis, ICC Clerk at a recent meeting with organizations non-governmental organizations at the seat of the Court. The Hague stated that the Rome Statute had reached maturity. The court is here to stay.

On the occasion of today's anniversary, which also marks World Day for International Justice, analysts and commentators look at the successes and shortcomings of the courtyard. Central to this discussion should be the (in) actions of treaty structures – the organs of the court, the Assembly of States Parties (ASP) to the Rome Statute and the United Nations Security Council, which has the power to refer and

When the Security Council submits situations to the ICC, all states should cooperate

The commitment of 123 states signatories to the Rome Statute to remain an integral part of the system is without any significant doubt. indicator of its success. This is especially true because the greatest challenges that the ICC has faced since its inception are the threat of withdrawal from African member states and their non-cooperation.

The threat of withdrawal has declined since several African governments have expressed support for remaining in the Rome Statute system. And the African states that led the withdrawal campaign have changed, like The Gambia; went surprisingly quiet about the issue, as in Kenya and Namibia; or indicated a possible rethink, as recently reported from South Africa. Burundi is the only State that left the Court.

Of course, for the Rome Statute system to work, the ICC needs not only registered members but active co-operation. The most serious threat to the court remains the non-cooperation of States. Cooperation is an essential part of the Rome Statute's wheel of justice, and without it, the ICC can not fulfill its mandate.

The two arrest warrants against Sudanese President Omar al-Bashir, in 2009 and 2010, Appear for Kenyan President Uhuru Kenyatta in 2014 triggered a reaction of the African Union (AU) against the ICC. The more African states accused the court of bias, the more it awakened the anti-CCI sentiment among the continent's leaders

The failure of the ASP and the Security Council to address African concerns rooted tensions between the AU and the ICC

urging its member states not to cooperate with the court regarding the mandates of al-Bashir, resulting in what the AU calls a withdrawal strategy in 2017. Curiously, the decision of the AU on the issue was more to ensure a constructive engagement with the Rome Statute System

The failure of the ASP and Security Council to address the concerns of African states – for example, presumption of bias, case selection, immunity of heads of state and not having an audience with top-level decision-makers on the Security Council – persistent tensions between the 39, AU and the ICC.

The problems of cooperation are not all caused by States parties. Neither Sudan nor Libya are States Parties to the Rome Statute, but through referrals from the Security Council, the situations in Darfur and Libya are before the courts. Both presented obstacles that it is difficult for the ICC to overcome without the intervention of the Security Council.

When the Security Council submits situations to the court, it must impose obligations of cooperation on all States and not only on the members of the Statute. A forthcoming report from the Institute for Security Studies states that this is essential for improving cooperation with the ICC. The Security Council should also use its powers under the United Nations Charter to respond to findings of non-cooperation. This should be systematic in cases arising from situations referred to the court by the Security Council.

To achieve its goals, the ICC needs not only registered members but active cooperation

Cases brought to court critical of its ability to provide justice to victims. The ICC Appeals Chamber has recently acquitted the Democratic Republic of Congo (DRC) Jean-Pierre Bemba of crimes allegedly committed in the Central African Republic.

The decision had complex political ramifications in the DRC, where Bemba is contesting the presidential election. elections in December of this year. In addition, because of the legal framework for court-ordered reparations, CAR victims are left without recourse to justice.

A similar failure to bring justice to the victims in the Germain Katanga case took place in June 2014. The prosecution dropped its appeal against a previous judgment. Kenyan affairs were interrupted or abandoned, leaving victims without the justice promised.

Despite the problems of the past 20 years, the ICC undoubtedly has potential and shows how the international community can do justice to the millions of victims. atrocities around the world. Realize this is not just the court case. This will require a real commitment on the part of the signatory states of the Rome Statute, the Security Council and civil society.

Allan Ngari, Principal Investigator, ISS Pretoria