Legal affairs correspondent
Top lawyer warns withdrawal of countries and limiting of funding threaten future of tribunal – and entire post-1945 settlement
Six months after the international criminal court’s new Dutch palace of justice was formally opened on windswept sand dunes beside the North Sea, a tide of nationalist sentiment is threatening to undermine the project.
Three African states have begun withdrawing from its jurisdiction, raising fears that a succession of others will follow suit. Russia has removed its signature from the founding statute, the Philippines and Kenya are openly contemplating departure and key member nations – including the UK – have limited its funding.
The tribunal embodies international efforts to prosecute those responsible for genocide, war crimes and crimes against humanity, but in 2017 it will face serious challenges to its credibility, insiders say.
Brexit, the election of Donald Trump and derogations from the European convention on human rights all represent a common theme of emphasising national interests over international – usually stigmatised as “foreign” – laws.
The most immediate threat is the move by Burundi, South Africa and the Gambia, which in the last quarter of 2016 have all served notice of intention to withdraw, citing complaints that ICC prosecutions focus excessively on the African continent.
Their exits, which will come into force a year after they served notice, will leave 121 member states that have ratified the 1998 Rome statute. China, the US, India, Russia, Indonesia and Israel are among those who have refused membership.
Efforts are being made to reverse the departure of the Gambia, which is home to the ICC’s chief prosecutor, Fatou Bensouda. Speaking after the court’s annual assembly of state parties in The Hague in November, she acknowledged: “It’s a regression for the continent that there are some African states that are deciding to withdraw from the ICC.”
The ICC encourages countries, she stressed, to try cases in their own courts as a first option. “The ICC was not meant to take each and every case,” Bensouda said. “There must be national efforts, there must be regional efforts that are also trying to bridge the impunity gap.”
Bensouda urged support for the court’s proposed 7% increase in its annual budget of just over €147m. There was, however, concerted resistance to the plans even from normally supportive states, which pared it back to 3%.
Amnesty International and Human Rights Watch both criticised resistance by the UK, Canada, France, Germany, Italy and other countries to the increase on the grounds of the global financial crisis and inefficiencies in the court. “The goodwill of even the strongest champions of international justice to support and fund the ICC cannot be taken for granted when their financial interests are affected,” the organisations warned.
Commenting on the settlement, a UK Foreign Office spokeswoman said: “We are committed to working with the court and states parties to ensure the budget is as streamlined as possible. The UK worked … with the six other biggest contributors to obtain an acceptable settlement figure.”
The ICC – motto “peace through justice” – has opened 10 full-scale investigations since 2004 into former presidents, politicians and warlords, all but one involving crimes allegedly committed in Africa. The only non-African investigation is into claims of war crimes in South Ossetia after the conflict between Russia and Georgia in 2008.
The ICC’s 10 separate, preliminary examinations cover a broader geographical area: Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Gaza flotilla and Ukraine. The Iraq examination is into the conduct of British troops following the 2003 invasion; the Afghan inquiry could target both US and Taliban forces.
The prosecutor has so far secured five convictions, including that of Thomas Lubanga Dyilo, a Congolese warlord who forcibly conscripted child soldiers and whose rebel followers carried out massacres, rapes and mutilations.
Prof Sir Geoffrey Nice QC, who helped prosecute Slobodan Milošević at the international criminal tribunal for the former Yugoslavia (ICTY), was in The Hague for the ICC’s annual assembly. He accepts there is a risk of collapse but is determined the court should survive.
“The ICC may have demonstrated shortcomings, unsurprisingly, in its early years,” he told The Guardian. “We hope it is doing better now. It was unfortunate or worse that it only pursued African countries even though some of these case were a result of African countries referring their own continuing conflicts in order to get the ICC on their government’s side.
“The three withdrawals and other threatened withdrawals will not terminate the court immediately but the court needs now to put on its best performances and produce truly creditable results.”
The court was hobbled from the beginning, Nice said, by the world’s most populous states’ refusal to ratify the treaty. “The saddest consequence of recent withdrawals is that the prospect of their ever joining becomes ever more remote … but there is work for the court to do if it can find courage and enough funds.”
Nice believes that the UN security council should be challenged “more bluntly” when its members exercise a veto in favour of another state – “by the US to protect Israel, by China to protect North Korea” – which prevents judicial accountability for crimes.
Prof Philippe Sands QC, who has appeared as an advocate before the ICC, said: “There are clear signals of concern about the future wellbeing of the ICC in relation to Africa.
“If you take what is happening to the ICC along with Brexit and Trump, there’s a real warning here of a threat to the post-1945 settlement that involved free trade, prohibitions on the use of violence and protection of human rights. There’s a danger of that unravelling and, if that happens, then of a return to the absolute sovereignty of the 1930s.”
The League of Nations and its attempts to establish an international legal order between the wars broke down in Africa over its failure to prevent the Italian invasion of what was then Abyssinia in 1934.
The latest pattern of defections suggests an element of self-interest. The objections from President Rodrigo Duterte of the Philippines follow a warning from the ICC’s prosecutor that the country could be investigated for the extrajudicial killing of thousands of alleged drug users and dealers.
Burundi, meanwhile, is the subject of a preliminary examination by the court; and Russia’s denunciation comes shortly after calls from the UK and US for its Syrian bombing to be subject to an ICC war crimes investigation.
One aim of establishing the ICC was to replace specialist tribunals dealing with former Yugoslavia, Rwanda and Sierra Leone, which had considerable success dealing with the aftermath of individual conflicts but faced allegations of dispensing victors’ justice.
The ICC is not short on ambition. It recently announced that it would look at environmental destruction crimes and illegal land grabs. Bensouda has suggested that the court may have jurisdiction over many foreign fighters in Syria and Iraq even though those nations are not member states.
Within South Africa, notice of withdrawal from the ICC has triggered an anguished national debate. Judge Richard Goldstone, who served as a prosecutor at the ICTY, has been leading the campaign to prevent South Africa’s exit.
“President Nelson Mandela, together with his administration, was a firm supporter of the ICC and more generally on furthering the mechanisms of international justice,” Goldstone wrote in October. “This is an unfortunate development that detracts from their inspiring legacy. It will also encourage those states, and specially in Africa, whose leaders have good reason to fear the international criminal court, to follow this most unfortunate example.”
Responding to threats of withdrawal, an ICC spokesman said Russia was never a full member-state party at the ICC and that the Philippine government has made no official declaration of withdrawal.
The spokesman said: “It is a sovereign right for each state to decide whether or not to join and to remain party to the Rome statute.”
The spokesman denied that the ICC focused on one specific region of the world. “Geographic considerations as such have no part in the exercise of this legal mandate,” he added. “Most of the ICC investigations in Africa were opened at the request of the African governments themselves. Two more were opened following referrals to the ICC prosecutor by the United Nations security council.”
In response to the underfunding of the ICC budget estimate, the spokesman said: “The court requested a particular level of funding but the amount allotted by the assembly was lower and therefore the court will have to adjust its planned activities for 2017 in response to the budget that was adopted. The court will continue to carry out its work and will use the approved resources in the best and most efficient way to fulfil its mandate.”
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