Turbulent year tests International Criminal Court’s credibility

Yola Verbruggen, IBA Multimedia JournalistMonday 23 October 2017

It’s been another turbulent year for the International Criminal Court (ICC). On 27 October, Burundi will become the first country to withdraw from the ICC. Towards the end of 2016, Russia withdrew its signature from the founding Rome Statute and several other countries, particularly in Africa, have threatened to withdraw from the tribunal or pull back their support.

Since its inception, the credibility of the ICC has faced major challenges. But, says the ICC President, Silvia Fernández de Gurmendi, it is when winds of change unsettle the political landscape that the Court is most important. ‘I recognise some disillusion exists today about globalisation in the economy, but also that has an adverse impact on global concepts like the rule of law or human rights,’ Fernández tells Global Insight.

‘Obviously, the world has changed a lot since the Rome Statute was adopted. The Statute benefitted from the optimism of the 1990s. It was created at the peak of idealist theories at the end of the Cold War. That, in a way, underlines even more the importance and the need to have created a permanent institution such as the ICC, which is not dependent on the political winds of the day,’ says Fernández, who’s involvement with the Court dates back to its establishment 15 years ago.

In the Americas, Asia and Europe, a surge in nationalism and isolationism that threatens to undermine human rights is bringing challenges to the ICC and could, conversely, discredit its legitimacy.

President Rodrigo Duterte of the Philippines has undertaken a brutal ‘war on drugs’ in which thousands of alleged drug users have been killed in a state crackdown, despite a request being made to the ICC to charge him with mass murder and crimes against humanity. In response, Duterte has threatened to withdraw from the Rome Statute. US President, Donald Trump, has threatened to roll back cooperation with the ICC. Despite the US not being party to the Statute, this would deal a blow to the tribunal’s ability to capture indictees.

At the same time, a storm that started brewing on the African continent after the indictment of Sudanese President Omar al-Bashir in 2009 has become stronger after a request made by the African Union to the United Nations Security Council to defer the case was disregarded in 2014.

After several calls for non-cooperation with the ICC, South Africa, Gambia and Burundi submitted notices of withdrawal to the Security Council in late 2016. Then, in February 2017, an African Union decision entitled ‘ICC withdrawal strategy’ led to speculation of a mass withdrawal of African states and fears that the ICC as an institution was under threat.

‘Was there discussion about member states withdrawing? Yes, it’s always been on the table,’ says a source closely involved in the talks, who asked to remain anonymous. ‘Maybe one or two states mention it. But… there is nothing in the decision or even in the ‘‘withdrawal strategy’’ that talks about member states agreeing to withdraw en masse from the ICC.’

I recognise some disillusion exists today about globalisation in the economy… that has an adverse impact on global concepts like the rule of law or human rights

Silvia Fernández de Gurmendi
President of the International Criminal Court

The African Union decision lays out plans for engagement with the ICC on issues of concern. Of its 54 member countries, 17 states expressed reservations about the decision.

The ICC currently has ten ongoing investigations, of which nine are in Africa and one in Georgia. This has prompted criticism that the tribunal is not pursuing alleged war crimes in other parts of the world, most notably Syria.

Richard Goldstone, former Chief Prosecutor of the UN International Criminal Tribunals for Rwanda and the former Yugoslavia, agrees that more could be done in other parts of the world, but dismissed claims that Africa is unfairly targeted. ‘The [Office of The Prosecutor] could well be more forthcoming on the status of current preliminary investigations. That said, the allegation of “picking on” African states is patently without merit. The facts are well known, and especially the number of African governments that have self-referred their situations to the ICC,’ says Goldstone.

Proponents of African nations engaging with the ICC have repeatedly called for dialogue between the two parties. According to Fernández, the ICC is also committed to continuing engagement. She adds it is ‘unavoidable’ that not every state supports the Court, but that many countries came forward to give their backing. ‘I was heartened by the outpouring of strong support from all continents,’ she says.

South Africa was forced to retract its notice of withdrawal after it was judged unconstitutional by its domestic court. Gambia also withdrew the notice, leaving only Burundi – which is the subject of a preliminary examination by the Court – on the path to withdrawal.

On 27 October, Burundi’s withdrawal will be final. Though the United States and Russia earlier withdrew their signatures from the Rome Statute, no member country has withdrawn. But the Court also gained a member this year when El Salvador ratified the Rome Statute, meaning that, even after Burundi’s withdrawal the total number of ICC member states will remain 123.