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ANALYSIS: Five questions on the ICC

One of the cased currently before the ICC is that of LRA's Ongwen
One of the cased currently before the ICC is that of LRA’s Ongwen

The Hague, Netherlands | AFP |

Once a champion of the International Criminal Court (ICC), South Africa dealt a blow to the world tribunal Friday by announcing its intention to withdraw, a move that came on the heels of a similar move by Burundi.

Here are five key questions following Pretoria’s announcement:

Is this the end of the ICC?

Not according to Harvard law professor Alex Whiting. “International criminal justice has always had its ups and downs and setbacks in the past. This is another setback, but the court is not going to disappear,” he told AFP.

The ICC’s founding Rome Statute “is a treaty and parties are free to leave it as they want,” said Aaron Matta, senior researcher at the Hague Institute for Global Justice think-tank.

“South Africa’s decision to leave sends the wrong message. But in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave a treaty,” Matta said.

Will there be mass withdrawal now?

Probably not. Burundi’s decision to leave the ICC amid a row with the UN’s main human rights body “may have opened a gate or a doorway for other countries… and it may be possible for other countries like Kenya and Uganda to follow as well,” said Whiting, but it did not mean many other African countries will necessarily do so.

For instance, Gabon last month referred a case to the ICC after deadly unrest was triggered in the central African nation over disputed elections, the analysts pointed out.

“There may be more pressure on other African countries to leave, but the ICC is not only African,” said Matta. Of the 124 countries to have ratified the Rome Statute since 1999, 34 are African.

Will current probes in Africa continue?

Yes. Pretoria’s decision to withdraw does not in affect any of the ICC’s investigations in any other countries in Africa. Neither does it free South Africa from any obligations, including financial, that it may have incurred while being an ICC member state.

Even if countries subject to preliminary assessments such as Burundi do pull out, the Rome Statute specifically states that a withdrawal “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings… which commenced prior to the date on which the withdrawal became effective.”

Is Africa being unfairly singled out?

“The prosecution has to follow evidence, and they go where the evidence leads them,” said Matta.

“They are in Africa because the victims are there. They are in Africa because that’s where serious crimes have occurred and most of these situations in Africa have been referred to the ICC by the countries themselves,” Matta said.

Cases involving actual investigations of alleged crimes in the Central African Republic, Uganda, Mali and the Democratic Republic of Congo were all referred to the ICC by the governments of those states. Cases in Libya and the Sudanese region of Darfur were referred by the UN Security Council. Only in Kenya and Ivory Coast did the ICC’s prosecutor initiate such investigations, and even in these countries, the governments cooperated to some extent with the court.

What about cases outside of Africa?

The court has not focussed exclusively on Africa. ICC judges in January gave the prosecutor permission to launch a full-blown probe into alleged war crimes committed in Georgia during its 2008 war with Russia over the Moscow-backed breakaway South Ossetia region.

The prosecutor also continues to conduct preliminary examinations — where issues of jurisdiction and admissability are evaluated — in countries as diverse as Afghanistan, Colombia, Iraq and in Palestine.

The ICC only acts as a court of last resort when states are unable or unwilling to do so. It can only operate where it has jurisdiction, either because the country is an ICC member state, or through a referral by the UN Security Council.

 

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