Stand-off between ICC and Africa heightens

( From Desmond Davies, London Bureau Chief )
The Hague, Oct. 28, GNA - The decision by Burundi, South Africa and The Gambia to deposit instruments of withdrawal from the International Criminal Court (ICC) with the UN Secretary General demonstrates that the stand-off between the Court and African countries is far from over, according to a leading light on Africa and international justice, Evelyn Ankumah.

Ghanaian-born Ms Ankumah, founder and Executive Director of Africa Legal Aid, an influential international non-governmental organisation specialising in contemporary legal and political issues in Africa, based in Maastricht in Holland, added: 'As a fervent advocate of international criminal justice, I am of course deeply disappointed about the decisions to withdraw.

'I will not deny that I am worried about a possible spill over effect.'

She was speaking in The Hague on Wednesday at the launch of a massive tome, The International Criminal Court and Africa: One Decade On, which she edited.

With a foreword by 96-year-old Benjamin Ferencz, the last surviving prosecutor at the Nuremberg Trials of Nazi war criminals, and a preface by Navi Pillay, former UN High Commissioner for Human Rights, the book's contributors are a veritable collection of international law experts, including ICC Prosecutor Fatou Bensouda.

The three African countries have decided to leave the ICC because they claim that it is biased against the continent because all but one of the cases before the Court are from Africa.

In an annexed declaratory statement, South Africa said that being part of the ICC

compromised its efforts to promote peace and security in Africa, in particular citing what it described as 'fundamental differences' between the African continent and many ICC member states on the issue of immunity for heads of state.

Rome Statute Article 27 prohibits immunities for leaders and senior government officials.

South Africa, along with Djibouti and Uganda, failed to execute an ICC arrest warrant for the President of Sudan, Omar al-Bashir, who is accused of war crimes by the Court.

As a result the governments of Djibouti and Uganda were referred by the ICC to the UN and the ICC's Assembly of States Parties (ASP) for their failure to arrest President al-Bashir when he visited these countries, while South African activists took action against their government in the country's Constitutional Court.

In the case of Djibouti, it recently came under the ICC spotlight following violence by government security forces against opponents of President Ismail Omar Guelleh, culminating in the death of 19 civilians, including a six-year-old child, last December.

The run up to April's presidential election, which President Guelleh won for a controversial fourth term, was marked by violence against members of the opposition parties.

The president has been under pressure, both locally and internationally, to open up the

democratic space, but he has been reluctant to do so.

Uganda was an avid supporter of the ICC but now President Yoweri Museveni is a strong critic of its activities in Africa.

In all this, Ms Ankumah sees something positive about the ICC.

'We may regard the decisions to withdraw positively,' she said 'States do not decide to withdraw from a lame duck Court that has no practical value.

'If the ICC were a powerless court, or if Burundi, South Africa and Gambia had nothing to fear from the ICC, there would be no need for them to step out', Ms Ankumah added.

She continued: 'The politically bold decisions to withdraw from the Rome Statute

demonstrate and confirm that the ICC has evolved as a Court that truly matters.

'While four convictions in more than 10 years may not seem a lot, it is plain that the ICC is not a Court that just barks.

'It is a Court that may actually bite.
'The entire criminal justice system set in place by the Rome Statute still needs improvement', Ms Ankumah noted.

'Among other things, it needs improvement in the area of state cooperation.

'I realise it sounds somewhat cynical, but the mere fact that some states wish to step out is a sign of the ICC's success.

'It demonstrates that the Court is living up to its mandate,' she added.

'Of course, the withdrawal decisions are worrisome.

'I sincerely hope that the South African Constitutional Court will conclude that the decision to withdraw, without first securing a resolution of parliament, indeed is unconstitutional.

'…it seems odd to me that a decision as fundamental as withdrawal from the ICC can be adopted without the consent of the representatives of the South African people in parliament.

'The side-stepping of parliament seems at odds with the country's post-Apartheid tradition of advocating democracy, fundamental rights and justice,' Ms Ankumah said.

Touching on the point that African critics of the ICC have been making - the failure of the ICC to chase leaders from powerful and influential states or any other non-African who might be suspected of being involved in international crimes - she said: 'That response, however, is flawed, I believe.

'In essence such response means that if we cannot bring one person before the ICC, then no one should be brought before the Court.

'In essence such reasoning implies that if one person cannot be held criminally accountable, no one should. 'It means giving up international criminal justice.'

She went on: 'International criminal justice, and thus the ICC, is crucial for promoting justice in Africa and for Africans.

'It is an essential tool to promote accountability in Africa, and it may contribute to building democratic governmental structures in African states.'

Debates on the ICC should therefore involve all members of our societies, and not just the ones occupying political positions.

'The international community, including the ICC, can contribute to peace and justice in Africa, but ultimately the desired changes needed in African systems of governance must be effected by Africans themselves,' Ms Ankumah added.

The International Criminal Court and Africa: One Decade On acknowledges the arguments of African opponents of the Court.

But the authors, in the main, discount these criticisms by using their expert knowledge to argue that the world should not be pessimistic about the ICC and that there is an optimistic outlook for the future of international criminal justice and the Court.

GNA