Tagged: withdrawal

More States Announce Intention to Withdraw from the ICC

Following Burundi’s example, two more African States announced their intention to leave the International Criminal Court: South Africa and Gambia.

South Africa has had a controversial relationship with the ICC since last year when it disregarded its responsibility to cooperate with the Court by refusing to arrest the then-visiting Sudanese President Omar al-Bashir. South Africa argued that such an obligation was in direct conflict with its domestic laws governing diplomatic immunity. Although the South African Court later ruled that letting President al-Bashir leave South Africa in 2015 was ‘disgraceful’, the South African Government has continued to state that the Rome Statute (namely Art. 27 addressing non-recognition of any form of immunity) is in direct conflict with South Africa’s Diplomatic Immunities and Privileges Act. The decision to withdraw from the ICC will become effective one year from the day the document withdrawing from the ICC was signed, October 19, 2016.

Following South Africa, Gambia this week also announced its intention to leave the ICC. In the televised announcement, Information Minister Sheriff Bojang said that

[t]his action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.

Gambia cites reasons that are similar to those given by Burundi – that the ICC targets African States. In fact, the Court’s mandate, as stated in the Preamble of the Rome Statute, is to fight impunity by ensuring that “the most serious crimes of concern to the international community as a whole must not go unpunished.” The Court is tasked with focusing on the international community, yet it has predominantly focused on number of African States. So far, the Court has officially investigated the Democratic Republic of Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Mali, Côte d’Ivoire, and Georgia; and the Court has conducted preliminary examinations (not always leading to opening an official investigation), among others, in Palestine, Afghanistan, Honduras, Republic of Korea, Nigeria, Colombia, Georgia, Guinea, Libya, Ukraine, Iraq, Venezuela, and Burundi.

This recent development by three African states – Burundi, Gambia, and South Africa – based on the allegation that the Court targets Africa presents a major blow to the already unstable reputation of the International Criminal Court, the first permanent criminal court of its kind.

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Burundi: The First State to Withdraw from the ICC

The Rome Statute, the founding treaty of the ICC, has 119 State Parties and 32 signatories. Burundi became a State Party on September 24, 2004 when it deposited its instrument of ratification. In 2016, the ICC announced that it was opening a preliminary examination into Burundi based on the Court’s having been monitoring Burundi’s internal situation since early 2015. The focus of the examination is to look into allegations that 430 persons have been killed, at least 3,400 have been arrested and over 230,000 have been forced to seek refuge due to government action. The forthcoming 2016 Report on Preliminary Examination Activities of the Court will bring more detailed summary and overview of the Court’s inquiry.

However, recently, and in line with one of the more frequent criticisms of the Court that it only prosecutes African nationals, Burundi voted overwhelmingly (94 for, 14 abstained, and 2 against) to withdraw from the ICC. The law now needs to be signed by the Burundi President to become effective, potentially making Burundi the first State to leave the ICC.

In response to this development, the President of the Assembly of States Parties issued a statement expressing his concern, as follows:

[t]he withdrawal from the Statue by a State Party would represent a setback in the fight against impunity and the efforts towards the objective of universality of the Statute. I remind that all States Parties have the opportunity to share their concern before the Assembly of States Parties in accordance with the Statute and invite the Burundian authorities to engage in a dialogue.

As discussed in our previous posts, preliminary examination is a stage prior to official investigation. The ICC does not authorize official investigation at the end of every preliminary examination. During the preliminary examination stage, the Court identifies whether the situation meets the Court’s selection and prioritization criteria for opening an official investigation. The Court may decline to proceed to an official investigation for a variety of reasons, such as: a finding that the situation is not grave enough to proceed; a finding that its complimentary jurisdiction should not be invoked because a genuine investigation and prosecution is being carried out by national representatives; or a lack of evidence to support subject matter jurisdiction.

In any case, the preliminary examination in Burundi is likely to continue even if Burundi withdraws from the Court’s jurisdiction, because the withdrawal is not likely to be applied retroactively. However, if Burundi does withdraw, and the investigation moves forward, that withdrawal is likely to make difference during the enforcement and cooperation stages.

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