Politicisation and Increasing Disinterest in the Membership of International Criminal Court


The International Criminal Court (ICC) is an institution of the United Nations, established in 2002 with the objective of prosecuting cases of war crimes, crimes against humanity and genocides. In other words, it is required to deal with the worst crimes, especially when Member States fail to investigate them for possible prosecution. Africa was particularly favourable to the establishment of the Court, especially because of the experiences of the 1994 Rwandan genocide and the Balkan wars in the 1990s.

Member States of the ICC is of various types: members for which the ICC Statute is yet to enter into force, members that have signed the Statute but have not ratified it, non-member states who accept the ICC’s ad hoc jurisdiction, members that did sign the Statute but have withdrawn, as well as members that have indicated interest to withdraw. In this last category are Burundi, South Africa, The Gambia, and most recently, Russia.

On Wednesday, 16th November, 2016 President Vladimir Putin dissociated himself from the ICC by announcing his intention to withdraw Russia’s membership of the ICC. Russia signed the ICC Statute but has not ratified it like the United States. In other words, signing an agreement is simply a preliminary endorsement. Without ratification, which is the process required in international law to make the Statute compelling, Russia is not yet obligated. However, the Russian intention to withdraw cannot but dampen the future of the Court, because the purpose for which the ICC was set up is unnecessarily derogated by politicisation by both members and the ICC.

Already, China and the United States are not part of the ICC. Russia that signed but has not ratified the Rome Statute now wants to withdraw, thus leaving France and Britain as the only two Permanent Members of the UN Security Council that have adhered to the Statute. With this type of development, there is no way impunity arising from crimes against humanity or from genocide can be contained. Without doubt, the ICC is faced with the challenge of survival.

The ICC is accused of only focusing its torch light on Africa, thus raising the issue of credibility and legitimacy. Even though African leaders are essentially the proponents of this observation, other countries do have qualms with the Court. Philippines is one of them. On Thursday, 17th November, at The Hague, Philippines indirectly protested against an ICC prosecutor who said the Court might look into the killings in the Philippines drug war in which more than 2,400 people have been killed, by announcing that Philippines might also withdraw from the ICC Statute. As explained by Leo Tito Ausan, a Philippine’s diplomat, who addressed the General Assembly of the Court, Philippines has a functioning judicial system and his delegation was awaiting directives from his government as to the definition of the future relationship of Philippines with the Court.

As argued by Tito Ausan, the ICC could only act if Member States (Philippine in this case) have failed to investigate and prosecute cases of war crimes, crimes against humanity, and genocide, for which the ICC has mandate. In fact, Philippine’s president, Rodrigo Duterte, in an attempt to cut off his country’s much dependence on the United States, is not only pursuing alliance with China and Russia but also wants to withdraw Philippines from the ICC which he has described as ‘useless.’

Another country is Russia which is the first country outside of Africa that has come out to indicate interest in withdrawing from the ICC. The eventual withdrawal of Russia will not only be interesting to see but remains particularly important at the level of the BRICS. The BRICS, comprising Brazil, Russia, India, China and South Africa, is much likely to also withdraw as individual members from the ICC. Already, four of them are not part of it. China is never part of the ICC.

India is never part of it and India’s foreign policy stand can be traced back to the time of World War II when the International Military Tribunal for the Far East was established. An Indian member of the tribunal, Dr. Radhabinod Pal, did not agree that the accused Japanese were guilty. Consequently, he gave a dissenting opinion. India simply refused to be bound by the changing concepts and definitions of offences that would hold incumbent government responsible for offences committed by individuals. Consequently, India never signed, and therefore never has a basis for ratification of the Rome Statute.

From the foregoing, it is only Brazil that has been an active member of the ICC. Brazil participated in the preliminary works that led to the signing of the Statute. Brazil deposited its instrument of ratification on July 20, 2002, hardly one month of take off of the Court, on January 1, 2002. Brazil strongly believes that the ICC would be ‘based on the understanding that an efficient, impartial and independent criminal court would represent a major breakthrough in the fight against impunity for the most serious international crimes.

South Africa has announced intention to withdraw. so has Russia. The problem is that the BRICS is cooperating as a body to impact on the world and to ensure that there is change in the post-World War II in the workings of the International Monetary System, especially from the perspectives of the Breton Woods institutions. In fact, the BRICS wants to be a centre of power in the making of a new world order.

Thus, the ICC has been faced by more political issues than by legal questions. Three African countries, Burundi, South Africa and The Gambia have indicated interest to withdraw their membership of the ICC and their reasons are essentially very political. The position of Africa, in the foreseeable future, also points to possible general withdrawal from the court. However, Nigeria’s position has been supportive of the court but which is not consistent with the direction of most of other countries, meaning that there cannot but be implications for Nigeria that is seeking permanent membership of the UN Security Council. Nigeria’s position should therefore be looked into carefully within the context of global politics of the ICC, especially from the perspective of its being used against Nigeria’s interest in the foreseeable future.

Africa and International Politics of the ICC
The politics of the ICC can be dated to the time of its founding, when a five-week diplomatic conference was held in Rome in June 1998 ‘to finalize and adopt a convention on the establishment of an international criminal court’ and when the following month, July 17, 1998, seven countries voted against the adoption of the ICC Statute, two of which are the US and China. 21 countries abstained, and 120 countries voted for adoption. Iraq, Libya, Israel, Qatar and Yemen were the other countries that voted against.

Although the US voted against the adoption of the Statute, the Bill Clinton administration eventually signed it in 2000 but did not submit it to the Senate for ratification. Bill Clinton wanted to wait and be able to assess the functioning of the Court. When the Statute entered into force with the required 60 ratifications in 2002 the Administration of President George W. Bush suspended in its May 6, 2002 letter to the UN Secretary General his country’s signature.

As noted above, China, Libya, Yemen, etc did not vote for the adoption of the ICC Rome Statute for obvious reasons: Libya and Yemen are on record for terrorist activities many of which fall under crimes against humanity and war crimes. China places greater emphasis on the primacy of its national sovereignty to the detriment of supranational authority. While the position of non-African countries is understandable, the position of African leaders raises critical questions without answers.

Africa’s position is first defined by the factor of the Sudanese President, Omar Hassan al-Bashir on who the ICC has placed a warrant of arrest allegedly for engagement in war crimes, crimes against humanity and genocide. President al-Bashir denied all the allegations levied against him. The African Union as a body considers that a sitting President enjoys immunity from prosecution and should not just be ridiculed on the altar of ICC allegations. In other words, the ICC should wait until any suspect(s) leave(s) office before the issuance of any warrant of arrest. The ICC does not care about this complaint.

All the Member States of the ICC are under obligation to arrest any person wanted by the ICC. President al-Bashir came to Nigeria and was not arrested. Nigeria hid under the pretext of an African Union-organised summit only held in Nigeria but over which she did not have control in terms of invitation or who should or should not attend.

In the same vein, President al-Bashir was not arrested in South Africa when another African Union summit took place there, even though there was a court decision that he should be arrested. The South African government played well its card: the court decision was in compliance with the rule of sanctity of agreements. The ICC obligation was fulfilled.

However, the court decision, for whatever reasons, could not reach those who were to enforce the court decision before President al-Bashir left South Africa. Again, in this delayed delivery, South Africa still satisfied the African Union, as well as its own promise of safety to the Sudanese leader if he accepted to participate in the summit.
It is because of the various criticisms levied against South Africa that largely prompted the decision to withdraw from the ICC, arguing that the Rome Statute ‘is in conflict and inconsistent with South Africa’s law giving sitting leaders diplomatic immunity.’ This is why ‘a difficult choice has to be made’ to borrow the words of the Justice Minister, Michael Mesutha.

Burundi was the first country on record to have first indicated intention to withdraw. On October 12, 2016, 96 of the 110 legislators voted to pull Burundi out of the ICC. One rationale which is not far-fetched is that the ICC had earlier on indicated intention to investigate killings following the violence generated by President Pierre Nkurunziza’s intention to do a third term to which the people were vehemently opposed. As noted by Madam Fatou Bensouda, ICC prosecutor since 2011 and a national of The Gambia, ‘at least 3,400 people have been arrested and over 230,000 Burundians forced to seek refuge in neighbouring countries… All these acts appear to fall within the jurisdiction of the ICC.’ In an attempt to avoid possible investigation, the legislators opted to withdraw from the ICC.

The Gambia is the third African country to make public its intention to withdraw from the ICC. On national television, the Information Minister, Sheriff Bojang, not only drew attention to the fact that Tony Blair, former British Prime Minister, was not indicted over his roles in the Iraqi war but also explained that the ICC was being used ‘for the persecution of Africans and especially their leaders.’ More important, Mr. Bojang had it that ‘there are many western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens.’ However, since the creation of the ICC, ‘not a single western war criminal has been indicted.’

Perhaps more interestingly, at the January 2016 African Union Summit in Addis Ababa, Kenya proposed a plan for possible collective withdrawal from the ICC. The newly elected Chairman, President Idris Derby of Chad, noted that ‘elsewhere in the world, any things happen, many flagrant violations of human rights, but nobody cares.’ In this regard, many, if not most, members supported the plan but eventually left individual Member States to decide for itself.

Nigeria’s position is interesting from the perspective that no Nigerian leader is under warrant of arrest and there is no basis either to issue a warrant of arrest to anyone in Nigeria. This might have informed the statement released on November 3, 2016 by the Acting Spokesperson of the Ministry of Foreign Affairs, Jane Adams, that Nigeria does not intend to withdraw her membership of the ICC. Nigeria prefers to seek ways and means of improving the workings of the court rather than withdrawing from it. Nigeria deposited her instrument of ratification on November 17, 2001 meaning that Nigeria was one of the sixty countries that ratified the Statute and that enabled it to come into force.

If Nigeria does not want to withdraw from the ICC in the belief that the ICC would be a platform to entrench justice, it can be assumed that Government and people of Nigeria are not likely to indulge in war crimes or in crimes against humanity. While this is good in itself, the policy appears to be myopic. This is because the ICC was founded on politics. Its orientations are also more political than legal. Politicisation is the very dynamic of Africa’s major complaints against the Court.

Put differently, why is Africa the main or first target of prosecutions? It is argued that the environmental conditionings of trial in other regions of the world are not conducive. If they are not conducive, why is it that most of the major powers prefer to sign but not ratify? Why is the number of intending withdrawals now on the increase?

Without doubt, all the notices of withdrawal are in defence of the national interest of the withdrawing states. We can safely assume that the decision of Government not to withdraw from the ICC is also in the national interest. However, when the national interest is subjected to critical analysis, it cannot but be difficult to justify Nigeria’s non preparedness to withdraw. For instance, one important foreign policy objective of Nigeria is the quest for permanent membership of the UN Security Council.

In this regard, which of the P-5 of the UN Security Council, either as member or non-member of the ICC, is likely to support Nigeria’s candidature for permanent membership of the Council? The United States, China, Russia are not part of the ICC. The extent to which France and Great Britain will accept Nigeria’s permanent membership of the Council is at best a matter of imagination. Even if any of the P-5 supports Nigeria’s candidature, the ICC as a platform for solidarity cannot be relevant. Anyone of them can veto what the other might have endorsed. Rightly or wrongly, many learned opinions have pointed to the ICC as a new instrument of re-colonisation. Will it not be in the national interest to be on the side of caution? Nigeria should avoid subscribing to agreements that will not allow her freedom of development choices.

Nigeria should also anticipate scenarios in which most African countries, sooner than later, pull out of the ICC. If African countries believe that the ICC is an instrument of persecution of African people and their leaders, and on that basis, opt to pull out, Nigeria’s association with the ICC can only imply that Nigeria is condoning the persecution of Africa. The allegations of The Gambia are quite pertinent in this case.

It can be rightly argued that Nigeria’s policy stand is consistent with the 1999 Constitution as Amended in that Nigeria’s foreign policy objective is also to respect international law, particularly all treaties, agreements to which she freely subscribes.

However, Nigeria should refrain from quickly rushing into endorsement of international agreements that have the potential of undermining her sovereignty and survival in the long run. The implications of international agreements must first be fully internalised at all levels of nation building before ratifying and eventually domesticating them.
PIX: Fernández de Gurmendi.jpg She is a woman.