This House believes African states should withdraw from the ICC

From its genesis, African nations have been involved in the ICC structure – the first ratifying nation was Senegal, and the ICC has much African involvement, including five African judges and the current prosecutor, Fatou Bensouda.

However, all the indictments at the ICC have been for Africans in cases involving African nations – almost all of which on states that voluntarily referred the cases to the court. Three African situations were not referred by a country – the Sudan and Libya cases were referred by the UN Security Council, and the situation following the post-election violence in Kenya in 2008-09 by the Prosecutor. The Kenyan trials are ongoing, the Libyan inductees are being tried in Libya, and the Sudanese inductees are, in the main, on the run.

The Kenya case was raised when the Office of the Prosecutor (OTP) used its power in the Rome Statute, which Kenya signed and ratified, to launch a case. This followed the unwillingness of Kenyan domestic authorities to prosecute those individuals deemed most responsible for orchestrating the violence after the disputed 2008 Presidential election, in which 1,000 people were killed.

Uhuru Kenyatta and William Ruto, two prominent Kenyan politicians, were indicted, appeared voluntarily, and had their charges confirmed in 2012. Kenyatta is accused of using a banned gang to keep power for one party at all costs, while Ruto is accused of ethnically cleansing ethnic groups seen as supportive of another candidate from certain areas. However, following their election as president and deputy president of Kenya respectively earlier in 2013, the African Union moved towards taking a position hostile to the ICC. The Ruto and Kenyatta trials are the unique - the first leaders selected by generally free and fair elections to be tried by the ICC.

This case has brought to a head the question of the membership of African states in the ICC. Kenya’s parliament has voted in favour of withdrawing from the ICC. Kenya however has not yet actually decided to declare its intention to withdraw to the UN which would be necessary to withdraw. Once a state has stated its intention to withdraw it takes a year to take effect.[1] If Kenya were to leave it would be the first state party to do so.

[1] Smith, David, ‘Kenyan MPs vote to quit international criminal court’, theguardian.com, 5 September 2013, http://www.theguardian.com/world/2013/sep/05/kenya-quit-international-criminal-court

 

Title 
The ICC has an anti-African bias
Point 

Every person indicted by the ICC so far has been an African, for events which occurred in Africa, all bar one case, the Libya situation (in which no trials have started and seem a long way off), are in sub-Saharan Africa.

The ICC has not brought actions against anyone involved in conflict in Colombia, or for the conflict in Sri Lanka or for human rights abuses around the world. The ICC is simply selectively prosecuting. 

Counterpoint 

Almost all the cases involve self-reference – the only ones that did not are UN Security Council references, done in the same way as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were set up. The other case, Kenya, was set up when the ICC prosecutor used its power in the Rome Statute. This only occurred after the Kenyan parliament failed to implement the recommendations of the Waki Commission, which it set up.

While horrible events occurred in Sri Lanka, the ICC does not have the ability to prosecute unless the case is referred to the court by the UN Security Council, or the Sri Lankan government, which is unlikely – it is not a kangaroo court that can make up jurisdiction to hear a case for political reasons[1]. Colombia is still being investigated[2].

[1]              Rome Statute, Article 22

[2]                Office of the Prosecutor, Report in to Preliminary Examination Activities, 2013, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF

Title 
An African Criminal Court would be better
Point 

Instead of the ICC structure, the African Union has proposed an African Criminal Court. An ACC could not only bring justice home to Africa, by creating a court which will not appear to African nations as being imposed by outsiders, but also be able to have additional remits to address other issues in Africa that the ICC does not have powers to deal with, such as coups, corruption and drug trafficking[1]. An African Criminal Court may also have a chance of being seen as more legitimate than the ICC, which had only 39% support in Kenya in July 2013[2].

[1]              IRIN, “Analysis: How Close is an African Criminal Court?”, IRIN (Integrated Regional Information Networks), 13 June 2012,  http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-cr...

[2]  Ipsos Synovate, “The ICC Issue and Raila’s Political Future”, Ipsos Synovate http://www.ipsos.co.ke/home/index.php/ipsos-kenya-news/21-the-icc-issue-and-raila-s-political-future

Counterpoint 

Additional crimes in the remit of an African Criminal Court could cause more problems than they solve.

Drug trafficking was rejected from the remit of the ICC[1] because it would overburden the court, which is intended to deal with international crimes. While the idea of prosecuting coups sounds good, in practice it would raise the same persecution complexes amongst leaders as the ICC does.

An AU court will also be subject to more local fractious politics and power struggles, rather than the bulk of the membership being from outside the region.

[1]              See , Kiefer, Heather, “Just Say No: The Case against Expanding the International Criminal Court’s Jurisdiction to Include Drug Trafficking”, Loyola of Los Angeles International and Comparative Law Review, 2009, http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1646&context=ilr at p164 

Title 
Tool for external interference.
Point 

The ICC creates a way that foreigners, and in particular the west with its tendency towards intervention, can remove and imprison African leaders[1].

Uhuru Kenyatta, the President of Kenya, who has been indicted by the court, has referred to it as a “toy of declining imperialist powers”[2].

The court is largely funded by Western countries, with the European Union providing over half the cost. So it should not be surprising if the west has a lot of power over the court. Moreover the west is dominant in the United Nations Security Council so potentially controls both the methods of referring a country to the ICC without its permission.

[1]              Monbiot, George “Imperialism didn’t end. These day’s it’s known as international law”, The Guardian, 30 April 2012, http://www.theguardian.com/commentisfree/2012/apr/30/imperialism-didnt-e...

[2]              Kenyatta, Uhuru, “Uhuru: ICC is a toy of declining imperial powers”, CapitalFM Blogs, 12 October 2012, http://www.capitalfm.co.ke/eblog/2013/10/12/uhuru-icc-is-a-toy-of-declin...

Counterpoint 

The principle of complementarity means that the ICC is only a backstop court – it only takes on a case when a state is unwilling or unable to have it dealt with in its own national courts[1].

If the ICC were a tool for external interference, it is solicited by the states in that most situations follow on from referrals by the domestic governments.

Referrals by the UN Security Council can happen irrespective of if a state is a party (hence the Libya and Sudan situations) – just like the ad hoc tribunals for Yugoslavia and Rwanda were created in 1994. Regardless this will only happen with the assent of Russia and China so ensuring that referrals are not following a ‘western imperialist’ agenda.

[1]              Rome Statute, Article 17

Title 
Detriment to peace process
Point 

The ICC has not been particularly effective in dealing with the situation in Uganda, the ICC prosecutions having been a distraction to local community reconciliation and leading to further violence [1].

 

Similarly, the situation in Darfur has not been helped by ICC involvement, with mass destruction of villages by people already indicted by the International Criminal Court[2]. Due to his indictment, a diplomatic solution has become harder as Rome Statute signatories are under a legal duty to arrest Sudanese leader Omar al-Bashir, although many have just ignored this.[3]

[1]              Sinclair, Jessical, “The International Criminal Court in Uganda”, Undergraduate Transitional Justice Review, 2010, http://ir.lib.uwo.ca/undergradtjr/vol1/iss1/5

[2]              Human Rights Watch, “Sudan: Satellite images confirm villages destroyed”, hrw.org, June 18 2013, http://www.hrw.org/news/2013/06/18/sudan-satellite-images-confirm-villag...

[3]              Cooper, Belinda, “The ICC: The Politics of Criticism”, World Policy Journal, 4 December 2013, http://www.worldpolicy.org/blog/2013/12/04/icc-politics-criticism

Counterpoint 

Justice is more than just a road to peace; it is a goal of its own.[1]

For most African states this should not be a cause to leave the ICC as they are unaffected by ICC indictments affecting a peace process. Even for those whom it does affect it is only transitory until a solution is reached. Such concerns moreover could be better dealt with by ensuring that the ICC puts in place a mechanism that recognises that in some instances peace can come first.

[1]              Human Rights Watch, “Perceptions and realities: Kenya and the International Criminal Court”, hrw.org, 14 November 2011, http://www.hrw.org/news/2013/11/14/perceptions-and-realities-kenya-and-i...

Title 
No impunity
Point 

The ICC means an end to impunity. It has meant that warlords such as Germain Katanga have been able to be prosecuted for things like using child soldiers, which are universally reviled.

What the African Union leaders are simply advocating by withdrawal from the ICC is impunity for themselves. They see one of their own – Uhuru Kenyatta, who has to face very serious allegations over his part in the mayhem after the 2007 elections which killed over a thousand people – being prosecuted and then claim it is selective. The only selection going on is that those who do not have a case to answer are not being prosecuted.

Counterpoint 

Impunity has occurred in some cases, due to the ICC system not leading to prosecutions, such as in Sri Lanka.

At any rate, the ICC is not needed – African courts can deal with individuals, not a foreign one.

Title 
ICC is cheaper
Point 

Africa bears little of the cost of the ICC – by far its largest contributions come from the European Union, and its member states.

This, coupled with the fact that the ICC is cheaper than the ad hoc tribunals due to economies of scale, means that justice can be delivered to war criminals and those who commit crimes against humanity in an affordable manner – saving resources for helping the victims.

Counterpoint 

Is justice something to be subjected to simple financial parameters?

Even so, what is the ICC cheaper than? It may be cheaper than individual criminal tribunals like the ICTY and ICTR, but that assumes that such tribunals are desirable. It should be left up to individual states to bring action.

Title 
ICC necessary to provide fair trials
Point 

Domestic legal systems will often suffer from a lack of judicial independence and potentially politicised prosecutions, and are also open to allegations of victors’ justice, or whitewashes by a judiciary biased towards the winners of the conflict.

The ICC, as an effective court and with an independent judiciary, provides a suitable and unbiased climate for these cases to be heard in.  While it is difficult to give any former head of state a fair trial, it is even more so in cases involving states divided along ethnic and political fault lines where any conviction could be seen as one based on continuing hatreds rather than evidence and criminal procedure.

In addition, the principle of complementarity means African states can prosecute on their own if they wish.

Counterpoint 

Independent nations are capable of trying war crimes themselves.

The ICC is an unnecessary intrusion on national sovereignty. It should be up to each state to determine its own legal system as to how criminal matters should be prosecuted.

The principle of complementarity is no guarantee as it is up to the ICC itself to determine if the state is unable or unwilling, meaning it could take over a case for its own ends.

Bibliography 

Cooper, Belinda, “The ICC: The Politics of Criticism”, World Policy Journal, 4 December 2013, http://www.worldpolicy.org/blog/2013/12/04/icc-politics-criticism

Human Rights Watch, “Sudan: Satellite images confirm villages destroyed”, hrw.org, June 18 2013, http://www.hrw.org/news/2013/06/18/sudan-satellite-images-confirm-villages-destroyed

Human Rights Watch, “Perceptions and realities: Kenya and the International Criminal Court”, hrw.org, 14 November 2011, http://www.hrw.org/news/2013/11/14/perceptions-and-realities-kenya-and-international-criminal-court#6

IRIN, “Analysis: How Close is an African Criminal Court?”, IRIN (Integrated Regional Information Networks), 13 June 2012,  http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-criminal-court

Kenyatta, Uhuru, “Uhuru: ICC is a toy of declining imperial powers”, CapitalFM Blogs, 12 October 2012, http://www.capitalfm.co.ke/eblog/2013/10/12/uhuru-icc-is-a-toy-of-declining-imperial-powers/1/

Kiefer, Heather, “Just Say No: The Case against Expanding the International Criminal Court’s Jurisdiction to Include Drug Trafficking”, Loyola of Los Angeles International and Comparative Law Review, 2009, http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1646&context=ilr

Monbiot, George “Imperialism didn’t end. These day’s it’s known as international law”, The Guardian, 30 April 2012, http://www.theguardian.com/commentisfree/2012/apr/30/imperialism-didnt-end-international-law

Office of the Prosecutor, Report in to Preliminary Examination Activities, 2013, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF

Sinclair, Jessical, “The International Criminal Court in Uganda”, Undergraduate Transitional Justice Review, 2010, http://ir.lib.uwo.ca/undergradtjr/vol1/iss1/5

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