Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

Is this the end of the ICC? No.

6 Comments

Paul Gora

Gambia is the smallest country in Africa with a total population 1.2 million and 4,363 square miles, which makes it slightly less than twice the size of state of Delaware. The Republic of The Gambia signed the Rome Statute on December 4, 1998 and ratified it on June 28, 2002, making it the earliest African country to ratify the treaty. Forty-seven African states were present for the drafting of the Rome Statute in July, 1998. Many of these countries were members of a like–minded group that pushed for adoption of the final statute, with the majority of the 47 voting in favor of adoption, which indicates their involvement in the negotiation and set up of the International Criminal Court.  Among those nations, South Africa, Senegal, Lesotho, Malawi, and Tanzania participated heavily in the discussion as early as 1993 when the International Law Commission presented a draft ICC statute to UN GA for consideration.[1]

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In light of the arrest warrant issued for Sudanese president’s Omar Al Bashir by ICC, there have been an allegations from some Arab and African leaders, as well as certain public figures, organizations, and academia criticizing the ICC as being a Western tool, designed to subjugate leaders of African continent and advance an imperialist/neo-colonial agenda. On the face of it, these criticism can be seen as plausible. The reality, however, is that these criticisms are misplaced, biased, increase and support impunity on the continent.

The recent decision by Gambia to withdraw from the ICC will have a consequential impact on the Court’s future in Africa because countries   like Algeria, Angola, Cameroon, Egypt, etc. who have signed, but not ratified the Rome Statute, may decide to never ratify and even revoke their signature. Such a mass withdrawal from the Court hurts, primarily, victims in these African states, as it denies them justice.

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IS THIS THE END OF THE COURT? 

It is not. International criminal justice has always had its ups and downs, but this will not be the end of the ICC as we know it. According to Article 127 of the Rome Statute, parties are free to leave as they want. Of course, the withdrawal of few states may send a wrong message to international community about the ICC, but, in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave.

WILL THERE BE MASS WITHDRAWAL?

Probably not. This move by Gambia and the two others may have opened a gateway for other countries, but it does not necessarily mean that many African countries will leave. For instance, Gabon last Month referred a case to the ICC after deadly unrest occurred in the nation over disputed election results.[2]

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IS AFRICA UNFAIRLY SINGLED OUT?

Of the current 10 full investigations, nine are underway in 8 African nations. The reasons for these investigations are easy to accept – The victims are in Africa.  The alleged crimes occurred in Africa. Theses situation have been referred to the ICC by the countries themselves or these situations have been referred by the United Nations Security Council under a Chapter VII resolution. [3] The spin that is put on these cases – that the ICC is targeting Africa – is false. Other situations in other parts of the world are also under investigation in the preliminary phase, including the Middle East, South America, and Europe.[4]

Time will tell. The arc of the moral universe is, after all, long, but it bends towards justice in the end.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

 

[1] http://www.iccnow.org/?mod=icchistory

 

[2] https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon

 

[3] https://www.icc-cpi.int/pages/situations.aspx

 

[4] https://www.icc-cpi.int/pages/preliminary-examinations.aspx

 

 

 

 

 

 

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Author: Ius Gentium

Ius Gentium is a legal forum for the University of Baltimore School of Law's Center for International and Comparative Law Fellows to write on and discuss international and comparative legal issues.

6 thoughts on “Is this the end of the ICC? No.

  1. Hi Paul,

    Great blog post. You mentioned that there wouldn’t be a mass withdrawal from the ICC but do you think a mass withdrawal is likely to happen in the continent of Africa? I read an article stating that Kenya and now Namibia are considering a withdrawal from the ICC.

    • Thank you Mr. Kim . I would answer your question as precisely as possible . There would be no mass withdrawal because some states behavior does not reflect the mass withdrawals from the ICC. Brundi , South Africa and The Gambia are not of course violating the international law by announcing their withdrawals from Rome statute that created the ICC. In accordance with Art.127 of the Rome statute , they have every rights to go.(leave) The question is what prompted them to withdraw ? are they being investigated or unfairly treated in face of ICC?
      On the contrary , I believed that the ICC and Rome statute system will not disappear because of some states withdrawals . The ICC can still function with 121 states or less .More over lack of court (ICC) jurisdiction over the state , does not means that state who committed a crime of international concern will walked away with the crime , UNSC still may play a role to refer the state concern to ICC . Therefore , their withdrawals will not affect the ICC as such .

  2. Hi Paul! Going along Christian’s comment, do you also think Burundi might also consider withdrawing from the ICC? There have been controversies over the President’s unconstitutional extension of his presidency and even allegations of government-backed mass murders. Also, what are the underlying reasons behind the Gambia’s withdrawal? Have there been mass murders and witch hunts that would mirror the ones mentioned in Alex’s blog post?

    • October 18, 2016 Brundi’s president signed legislation calling for his country withdrawal from ICC claiming that , the court is an instrument of powerful countries used to punish African leaders who do not comply with the west. The reality however is , that Brundi has failed to hold people responsible for brutal crime to account and sunk to the laws in an attempt to deny victims’ ‘justice . This move by Brundi is to continuing disregards for human rights and rule of law and to keep the president in power for indefinite terms in office . The decision to withdraw also comes after the United Nations human rights council resolved on September 30 , 2016 to create a commission of inquiry into human rights abuses in the county.

      The reason for The Gambia to withdraw is not different from Brundi . The Gambia’s president has been ruling the country by iron fist for many years . The most underlying reason behind its withdrawal is that , the president accuses the Hague based tribunal of prosecution and humiliating the people of Africans .But that may not be the only reason prompted the withdrawal , the government has been accused by AMNESTY International of brutally repressions and murdering oppositions. So the withdrawal from the tribunal is an attempt to cover the alleged crime its committed .

  3. Paul–do you know why the Gambia is suddenly withdrawing from the ICC’s jurisdiction? The Achilles heel of the ICC is of course, enforceability. Has there been some scandal or genocide in the country to lead to this? Or simply the pervasive attitude amongst the African diaspora that the West is out to get them?

    • The reasons that prompted the Gambia to withdraw from the ICC’s jurisdiction is following unrest early October , 2016 which resulted dozens of oppositions and civilian death in police responses and in a detention centers .
      .
      The Government has been accused by Britain and other western countries of human rights abuses in the Country due, to this the Government blamed the western countries of orchestrating the protest . The government’s only option however, is that to withdraw from ICC’s jurisdictions to block the investigations of human rights abuses . Therefore The Gambia withdrawals from ICC has nothing to do with the Africans diaspora agitations .

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