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African states and the ICC: quo vadis?

Publish date: 15 July 2019
Issue Number: 4739
Diary: Legalbrief Today
Category: International

The role of the International Criminal Court in Africa, and the very serious need for the court to consider the concerns which were raised at Rome in 1998 is taken up by Advocate Max du Plessis SC and the University of KZN’s Christopher Gevers, who argue that while threats of a mass withdrawal have simmered for some time, there seems to be little hope of a rapprochement. They say that the fractures within the relationship of member states and the court have come about as the result of the actions and inactions of the ICC, and its supporters; and that these were general concerns African states’ had about the ICC that were present in 1998 – and which have come to be realised, for the worse, with each year passing. In the first of a two-part analysis on the OpinioJuris site, the authors examine the first two concerns:

Concern 1: The Office of the Prosecutor (OTP) must be impartial: To date the ICC has only prosecuted Africans. The authors point to the dispute on whether the OTP has ‘targeted’ African states, adding there is minimal consensus that the OTP has failed to pursue merit worthy cases outside of Africa; and the OTP has failed to adequately address the perception that it has targeted African states, which has compounded matters further. They point out that the Palestine situation remains stuck in the preliminary examination stage; and that a similar pattern can be seen in the efforts of the former and present OTP to ‘not-select’ the situations in Iraq and Afghanistan. They add there has been little to suggest a willingness on the part of either the former or current OTP to accede to pleas from African states to take these concerns seriously.

Concern 2: The Security Council must exercise powers consistently: This failing was most notable in the refusal of the Security Council to exercise its powers in Syria, even after 65 UN states signed a petition requesting it to do so. The authors say that over the past decade, academics have ‘fiercely’ debated the status of President Al-Bashir’s immunity. When the issue came before the ICC Appeals Chamber in 2018 the prosecutor was presented with a number of lines of reasoning from which to choose. ‘Tellingly, she settled on an argument that not only further legitimates the role of the Security Council under the Rome Statute, it grants it extraordinary power beyond it (power that it did not even ask for), by endorsing the power of the Security Council to bind a state to a treaty to which it did not accede (and did so based on an expansive interpretation of the Security Council’s powers, and the terms of its resolutions).’

Full analysis on the OpinioJuris site

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