In­ter­na­tional court hit by planned exit of 3 African states

Daily Local News (West Chester, PA) - - WEATHER - By Mike Corder

THE HAGUE, NETHER­LANDS >> When the treaty cre­at­ing the In­ter­na­tional Crim­i­nal Court was opened for sig­na­to­ries in 1998, Egyp­tian-born le­gal scholar Mah­moud Cherif Bas­siouni called it “a tri­umph for all peoples of the world.”

Fast-for­ward 18 years, and the lofty ideal of es­tab­lish­ing a court that would end im­punity for atroc­i­ties and de­liver jus­tice to vic­tims is reeling from the an­nounced de­par­tures of three African mem­ber states: Bu­rundi, South Africa and Gambia. Never be­fore has one of the court’s 124 mem­ber states quit. Now three have.

Con­cerns are grow­ing that more African coun­tries will leave.

The court, which this year moved into a new head­quar­ters in The Hague, long has been ac­cused by some African lead­ers of bias against their con­ti­nent. At first glance, it’s easy to see why.

Since the Rome Statute treaty cre­at­ing the court came into force in 2002, the ICC has con­victed only four peo­ple of war crimes and crimes against hu­man­ity. Three were from Congo and one from Mali.

The court so far has in­dicted only sus­pects from Africa, rang­ing from no­to­ri­ous Ugan­dan war­lord Joseph Kony to Su­danese Pres­i­dent Omar al-Bashir and late Libyan dic­ta­tor Moam­mar Gad­hafi. It cur­rently has 10 full-scale in­ves­ti­ga­tions un­der­way, with nine in Africa and the other in the for­mer Soviet re­pub­lic of Geor­gia.

But Alex Whit­ing, a pro­fes­sor at Har­vard Law School and for­mer ICC pros­e­cu­tion co­or­di­na­tor, said the court shouldn’t be blamed for the Africa fo­cus. In six cases, the African coun­tries them­selves asked the ICC to in­ves­ti­gate, and two oth­ers were re­ferred to the court by the U.N. Se­cu­rity Coun­cil.

“Could the ICC re­ally have de­clined to move on these cases?” Whit­ing said.

Sup­port­ers of the court say more is at play, in­clud­ing fears in Bu­rundi and Gambia that ICC pros­e­cu­tors could tar­get rulers there.

The court’s chief pros­e­cu­tor, Fa­tou Ben­souda, her­self a Gam­bian, was de­fi­ant this week and in­sisted — as do other ob­servers — that the court will weather the cri­sis.

“I don’t think we should feel we are de­feated and that the court will close to­mor­row,” Ben­souda told a sem­i­nar in The Hague. “No, the court will have its chal­lenges. We will counter those chal­lenges. We will con­front them and move for­ward.”

U.N. Sec­re­tary-Gen­eral Ban Ki-moon said he hopes that South Africa will re­con­sider its de­ci­sion to leave the ICC when speak­ing to South Africa Pres­i­dent in a phone call, ac­cord­ing to a re­lease by the U.N. press of­fice on Sun­day.

The African de­par­tures have high­lighted broader crit­i­cisms of the court, which em­ploys some 800 staff and has a pro­posed bud­get next year of just over 150 mil­lion eu­ros ($164 mil­lion). Most notable is its fail­ure to tackle crimes out­side the con­ti­nent, such as the litany of atroc­i­ties in Syria’s bru­tal civil war.

“It is un­der­stand­able that coun­tries that have vol­un­tar­ily sub­mit­ted them­selves to the ICC won­der why there is no ac­count­abil­ity in places like Syria, and why the Se­cu­rity Coun­cil has not acted to re­fer Syria to the ICC or con­struct a tri­bunal for Syria,” said Whit­ing. “That’s why I think that the crit­i­cism of the African coun­tries should be aimed at the in­ter­na­tional com­mu­nity rather than the ICC.”

Syria’s civil war is largely out of reach of the ICC pros­e­cu­tors be­cause the coun­try is not a mem­ber of the court. A res­o­lu­tion by the U.N. Se­cu­rity Coun­cil to re­fer the Syr­ian war to the ICC was ve­toed in May 2014 by Rus­sia and China.

An­other long­stand­ing crit­i­cism that feeds into African dis­con­tent is the fact that global pow­ers such as the United States, Rus­sia and China are not mem­bers.

Theo van Boven, an hon­orary pro­fes­sor of in­ter­na­tional law at Maas­tricht Univer­sity who led the Dutch del­e­ga­tion at the Rome con­fer­ence that cre­ated the ICC, said the ab­sences hurt the court.

“It would be help­ful in­deed if ma­jor pow­ers ... would join and con­trib­ute to the rep­re­sen­ta­tive char­ac­ter of a ju­di­cial in­sti­tu­tion that is stand­ing for univer­sal val­ues of an im­per­a­tive na­ture,” Van Boven wrote in an emailed re­sponse to ques­tions by The As­so­ci­ated Press.

The court’s fo­cus has be­gun shift­ing fur­ther afield. It is cur­rently con­duct­ing 10 so-called pre­lim­i­nary ex­am­i­na­tions — probes to es­tab­lish whether to open a full in­ves­ti­ga­tion — in coun­tries in­clud­ing Afghanistan, Ukraine and Colom­bia, as well as the Pales­tinian ter­ri­to­ries and al­leged crimes by Bri­tish forces in Iraq.

While the court has had high-pro­file fail­ures in Africa — the col­lapse of the case against Kenyan Pres­i­dent Uhuru Keny­atta and the in­abil­ity to have Su­dan’s pres­i­dent ar­rested — it also has reg­is­tered suc­cesses.

ICC judges have de­liv­ered con­vic­tions for us­ing child sol­diers in con­flict and for hor­ri­fy­ing sex­ual crimes that long have gone un­pun­ished. They re­cently con­victed an Is­lamic mil­i­tant for de­stroy­ing his­toric mau­soleums in the Malian desert city of Tim­buktu.

It is still pos­si­ble that South Africa, a staunch sup­porter of the court un­der for­mer Pres­i­dent Nel­son Man­dela, will re­verse its de­ci­sion to leave the court, Prof. Michael Scharf, dean of the law school at Case West­ern Re­serve Univer­sity, said.

The de­ci­sions by South Africa, Bu­rundi and Gambia to leave also might be a wake-up call for the court, he said, “in­spir­ing a se­ri­ous re-ex­am­i­na­tion of ICC-African re­la­tions and ul­ti­mately lead­ing to re­forms in the ICC’s ap­proach to Africa.”

The global hu­man rights um­brella or­ga­ni­za­tion FIDH slammed the coun­tries’ de­par­tures as dam­ag­ing the lofty goals of the court.

“We be­lieve that with­draw­ing from the ICC puts a premium on im­punity,” the group said in a state­ment signed by 106 rights groups, in­clud­ing many from Africa. “With­drawal poses a threat to one of the great­est ad­vances in jus­tice of the 21st cen­tury, at a time when geno­cide, crimes against hu­man­ity and war crimes are per­pe­trated reg­u­larly and ram­pantly world­wide.”

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