NATIONAL DIALOGUE ON THE INTERNATIONAL CRIMINAL COURT SYSTEM

CENTRE FOR FOREIGN RELATIONS

DAR ES SALAAM

A CONCEPT NOTE

AFRICA’S DISCONTENT WITH THE INTERNATIONAL CRIMINAL COURT: IS WITHDRAWAL THE BEST OPTION?

As part of its NATIONAL DIALOGUE PROGRAMME the Centre for Foreign Relations, in collaboration with the Association of Retired Tanzania’s Ambassadors, are organizing  a panel discussion on the topic: AFRICA’S DISCONTENT WITH THE INTERNATIONAL CRIMINAL COURT: IS WITHDRAWAL THE BEST OPTION? The discussion will take place on 27^th March, 2014 at the Mwalimu Nyerere Conference Centre at 10 a.m. – 13 p.m.

The discussion will look at the historical background of the International Criminal Court (ICC) focusing on the rationale for the Court’s existence, its establishment process and its comprehensive jurisdiction. At the same time the discussion will look at the Court’s institutional structure focusing on its membership and its organs such as the Assembly of States Parties, the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. The discussion will also dwell on the Court’s functional procedures and analyze its performance so far.

The main debate will be on Africa’s dissatisfaction with the ICC, focusing on the issues and arguments for their dissatisfaction. The discussion will conclude by analyzing whether withdrawal from the ICC is the best option for the Africa’s States Parties. If not, what are the alternative options worth considering?

FACTUAL BACKGROUND

Establishment

The International Criminal Court, commonly referred to as the ICC, is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression.

The ICC was created by the Rome Statute which was adopted on 17^th July, 1998 by a vote of 120 to 7, with 21 countries abstaining. The 7 countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States and Yemen.

The Rome Statute became a binding treaty on 11^th April, 2002, when the number of countries that had ratified it reached 60. The Statute legally came into force on 1^st July, 2002, and the ICC can only prosecute crimes committed after that date. The Court has its headquarters in The Hague, Netherlands, but its proceedings may take place anywhere. It is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.

Currently, 122 states are states parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania and more than half of the countries of Africa. A further 31 countries, including Russia, have signed but not ratified the Rome Statute. Three of these states – Israel, Sudan and the United States – have informed the United Nation Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives’ signature of the Statute.

Forty one United Nations member states have neither signed nor ratified or acceded to the Rome Statute.

Performance

To date, the Prosecutor has opened investigations into eight situations in Africa: the Democratic Republic of Congo (DRC); Uganda; the Central Africa Republic (CAR); Darfur; Sudan; Kenya; Coté d’Ivoire and Mali. The Court’s Pre – Trial Chambers have publicly indicted 36 people. The ICC has issued arrest warrants for 27 individuals and summonses to 9 others. Eight persons are in detention.

Proceedings against 28 are ongoing: ten are at large as fugitives, five have been arrested, but are not in Court’s custody, including one who is appealing an order referring the case against him to national authorities, seven are in the pre – trial phase, another four are at trial, one is appealing his sentence, and one individual’s acquittal is being appealed by the prosecutor. Proceedings against eight have been completed: four have had the charges against them dismissed, one has had the charges against him withdrawn, and three have died before trial.

As of December 2013, the Court’s first trial, the Lubanga trial (Thomas Lubanga Dyilo) in the situation of the DRC is in the appeals phase after the accused was found guilty and sentenced to 14 years in prison and a reparations regime was established. The Katanga – Chui trial (Germain Katanga and Methieu Ngudjolo Chui) regarding the DRC was concluded in May 2012. Mr. Ngudjolo Chui was acquitted and released. The Prosecutor has appealed the acquittal. The decision regarding Mr. Katanga is due to be announced on 7^th February, 2014. The Bemba trial (Jean – Pierre Bemba) regarding the CAR is ongoing with the defence presenting its evidence.

The fourth trial in the case of Ruto – Sang (The Vice President of Kenya, Mr. William Ruto and a Kenyan journalist, Joshua Arap Sang) regarding the situation in Kenya, began on 10^th September, 2013. The Kenyatta trial (that of President Uhuru Kenyatta of Kenya) will begin on 5^th February, 2014. Another trial Chamber for the Banda trial (Abdallah Banda Nourain) in the situation of Darfur, Sudan, has been established with the trial scheduled to begin in May 2014. The decision on the confirmation of charges in the Laurent Gbagbo (the former President of Coté d’Ivoire) in the Coté d’Ivoire situation is pending after hearings took place in February 2013 and after the decision was adjourned to give the Prosecutor more time to present compelling evidence. The confirmation of charges hearing in the Ntaganda case (Bosco Ntaganda) in the DRC situation is scheduled to begin in February 2014.

AFRICA’S DISSATISFACTION WITH THE INTERNATIONAL CRIMINAL COURT

Africa’s discontent with the ICC started immediately following the ICC’s indictment of African leaders. In 2009 the ICC indicted the Sudan’s President, Omar al – Bashir, for genocide and war crimes in Darfur. Immediately the African Union asked the United Nations Security Council (UNSC) to quash the ICC charges against Bashir on the grounds that they were inhibiting the peace process in Darfur. When the request was refused by the UNSC the AU requested that Bashir’s prosecution should be deferred by one year in accordance with Article 16 of the Rome Statute, on the argument that he was instrumental in the peace process in Darful. This request was also not accepted by the UNSC.

In March 2011 Uhuru Kenyatta and William Ruto (who latter became President and Vice President respectively, following the 4^th March, 2013 general elections) were indicted by the ICC and charged with committing crimes against humanity following the 2007 – 2008 Post – Election Violence. On 23^rd January 2012, the Pre – Trial Chamber issued a Decision on the Confirmation of Charges, finding that there was sufficient evidence against the accused to allow the matter to proceed to trial.

Initially, following their indictment, both Kenyatta and Ruto made a point of officially cooperating with the Court, showing up in The Hague when required. It is critical to note that Kenyatta’s and Ruto’s indictment became an African issue only when they were elected president and vice – president, respectively, after the 4^th March, 2013 general elections. The implication here is that the Kenyan President would be the first sitting head of state to be prosecuted in the international court. This created a problem to African leaders, fearing that the Kenyatta’s prosecution would set a serious precedence with far – reaching implications for other African leaders.

At the national level, on 6^th September 2013, the Kenyan Parliament voted in favour of a motion urging the government to urgently undertake measures to immediately withdraw its membership from the Rome Statute. It was on the basis of the Parliament’s vote that the Government of Kenya requested the African Union Commission (AUC) to convene an Extra – Ordinary session of the African Union (AU) to deliberate on the Africa’s relationship with the ICC.

The Kenya’s request to hold an Extra – Ordinary Summit was endorsed by the AU Ministerial Consultative Meeting held in New York on 27^th September, 2013 in the margins of the 68^th Session of United Nation General Assembly (UNGA). The Ministerial meeting called on the AU member states to continue providing a strong political support to the Government of Kenya for the deferral for one year of the proceedings initiated against the President and the Vice President of Kenya by the UNSC in accordance with Article 16 of the Rome Statute.

At the continental level, the AUC convened the Extra – Ordinary Summit on 12^th October, 2013 amid speculation that African states parties might withdraw en mass from the ICC. No specific recommendation on withdrawal was tabled during the session. However, it hovered in the air as the option of last resort.

Among the specific decisions made by the Extra – Ordinary Summit included the following:

-                     That no charges should commence or continue before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office;

-                     That the trials of President Kenyatta and Deputy President Ruto should be suspended until they complete their terms of office;

-                     That Kenya should send a letter to the UNSC requesting for deferral, in conformity  with Article 16 of the Rome Statute, of the proceedings against the President and Deputy President of Kenya;

-                     To request the ICC to postpone the trial of President Uhuru Kenyatta and suspend the proceedings against Deputy President William Ruto until such time as the UNSC considers the request by Kenya for deferral; and

-                     That President Uhuru Kenyatta should not appear before the ICC until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UNSC and the ICC.

At the international level, neither the ICC nor the UNSC heeded to the AU’s decisions.

CRITICAL QUESTIONS FOR DISCUSSION

The following are some of the critical questions for discussion:

1.          Taking into consideration the objectives of the ICC’s existence, are the African leaders’ concerns with the ICC a true representation of the feelings of the ordinary Africans?

2.          What is it exactly that the African leaders are complaining against the ICC?

3.           Is the Rome Statute fundamentally flawed from the start on the issue of prosecuting sitting heads of state? If so, what should be done to rectify the situation?

4.          African leaders have decided to use the AU as the forum to discuss their grievances against the ICC. Is the AU an appropriate platform to discuss their discontents with the ICC?

5.          In the case of Kenyatta and Ruto the African States have recommended that their cases should be held in East Africa rather than in The Hague. Is this a call for a mere change of VENUE or a call for an alternative JUDICIAL MECHANISM for the prosecution?

6.          Given the fact that all Africa’s decisions and requests have not been heeded to by neither the ICC nor the UNSC, what is the way forward for Africa, particularly for the African States parties to the ICC? Is withdrawal the best option?

7.          What is the best way for the ICC to intervene to protect the victims in Africa amid the accusations that it is targeting the accused?

FORMAT FOR THE DISCUSSION

The discussion will be introduced by a group of three Panellists. The first will cover the ICC’s establishment process and the rationale for its existence. The second will focus on the Court’s jurisdiction, its institutional structure, as well as its functional procedures and its performance so far. The third Panellist will deal with the issue of African states’ discontent with the ICC, looking at the issues and the arguments involved before focusing on the way forward.

An open discussion will follow after the three presentations by the Panellists. The whole discussion will be co-chaired by a representative from the Centre for Foreign Relations (CFR) and a representative from the Association of Retired Tanzania’s Ambassadors (ARTA).

  

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