Lawyers must fix the problems with gagging orders before it is too late
At the start of February 2017 it was reported that a summit of African Union (AU) member states passed a non-binding resolution supporting a "strategy of collective withdrawal" from the International Criminal Court (ICC). The news follows last year’s announcements by South Africa, Gambia and Burundi to leave the ICC, and indications given previously by Kenya of its intention to do the same.
Only countries that are signatories to the Rome Statute, the international treaty that created the ICC, are (with some exceptions) subject to its jurisdiction. The effect of a country withdrawing from the ICC is therefore significantly to limit the possibility of nationals of that country being tried before the ICC. In any event, in practical terms, it is very hard for the ICC to exercise an effective jurisdiction without the co-operation of the affected country. This has been clearly seen in the case of Sudan, whose president, Omar Al Bashir, remains at large despite a warrant for his arrest being issued in 2009.
Although details are scarce as to exactly what the resolution comprises, it appears that it was not unanimous, with Nigeria and Senegal both reportedly opposing the resolution. Nonetheless the ICC would do well to recognise the rising tide of dissatisfaction among African nations. There has long been a complaint that the court’s focus is unfairly on African issues – all those prosecuted to date have been from African countries, though there are now a number of proceedings before the court relating to Eastern Europe, the Middle East and South America.
Africa is not the only challenge faced by the court. Russia announced in November 2016 that it was withdrawing its signature from the Rome Statute. Although this was symbolic, as Russia has never ratified the treaty and therefore not brought itself within the jurisdiction of the court, it was a further blow to the authority of the court. Although members of the ICC include 124 countries, the world’s most powerful nations - the US, Russia and China - have never submitted to its jurisdiction. It is unsurprising therefore that there are complaints about double standards.
A further summit of AU countries will take place in six months at which point membership of the ICC will doubtless be debated again. It is clear from the reports that some African countries want to see changes to the ICC rather than to withdraw from it. It is for the ICC to show African countries – and the rest of the world – that it remains relevant and fit for purpose.
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