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International Criminal Court (ICC)

Since the establishment of the ICC in 2002, the court conducted ten investigations. Nine of them were over crimes on African soil and the remaining case was tied to offenses in Georgia. The creation of the Rome Statute in 1998 was in itself a historic event, marking a milestone in humankind's efforts towards a more just world. According to the Rome Statute, a State Party or the United Nations Security Council acting under Chapter VII of the UN Charter can refer a situation to the ICC Prosecutor in which one or more of crimes under the ICC jurisdiction appear to have been committed. It is then up to the Prosecutor to decide whether or not to open an investigation. The statue obligates its signatories to arrest anyone sought by the ICC. The ICC cannot investigate non-member countries of its own initiative, but may do so if the UN Security Council authorized it, as was the case in Darfur (2005) and Libya (2011).

The annual report of the ICC Prosecutor Fatou Bensouda on November 14, 2016 states that the ICC has reason to believe that in the period from May 1, 2003 to December 31, 2014, "the US military and the CIA committed war crimes in Afghanistan, including torture , ill-treatment, outrages upon personal dignity, and rape. " Most of the incidents occurred in 2003-2004. At this stage, only the ICC is examining the situation and not to bring charges against specific individuals.

The Rome Statute took effect in 2002, upon ratification by 60 States. By 2016 the treaty had 124 state parties [not quite two-thirds of the world's states]. Senegal was the first to ratify the Statute, on 02 February 1999. Côte d’Ivoire ratified the Statute on 15 February 2013, Palestine on 02 January 2015, and El Salvador on 03 March 2016. Notable countries which have not become state parties include the United States and Russia [which signed but did not rafity], and China and India, which are not signatories. Some countries are wary of The Hague, Netherlands-based court's powers, seeing it as potential interference.

Acting in an official capacity as a head of state, member of government or parliament or as an elected representative or public official in no way exempts a person from prosecution or criminal responsibility. Superiors or military commanders may be held responsible for criminal offences committed by persons under their effective command and control or effective authority and control.

Since the ICC was established in 2002, under the auspices of the 1998 Rome Statute, to investigate genocide, war crimes, and crimes of aggression, it has opened investigations into nine nations, eight of them African. Uganda, DR Congo, Central African Republic and Mali, which are parties to the ICC, sent complaints to the courts themselves. The investigations in Darfur and Libya were initiated by the UN Security Council, and the ICC Prosecutor initiated proceedings in Kenya, Côte d'Ivoire, as well as the Georgian-Ossetian conflict.

In January 2016 it was announced that and investigation had starated of crimes against humanity, including murder, forced displacement of the population, war crimes against civilians and peacekeepers, which "allegedly were committed in South Ossetia from 1 July to 10 October 2008".

  1. Georgia: ICC prosecutor authorized to open their own probe, 2016
  2. Central African Republic: Referred to the ICC by the country's government, 2014
  3. Mali: Referred to the ICC by the country's government, 2012
  4. Ivory Coast: ICC prosecutor authorized to open their own probe, 2011
  5. Libya: Referred to the ICC by the U.N. Security Council, 2011
  6. Kenya: ICC prosecutor authorized to open their own probe, 2010
  7. Darfur, Sudan: Referred to the ICC by the U.N. Security Council, 2005
  8. Central African Republic: Referred to the ICC by the country's government, 2004
  9. Uganda: Referred to the ICC by the country's government, 2004
  10. Congo: Referred to the ICC by the country's government, 2004

The Court closed five cases concerning Kenya, Sudan (Darfur) and the Democratic Republic of Congo. All cases were closed without charges. There were five ongoing cases on trial as of 2016 for war crimes in Darfur (Sudan), Uganda, Côte d’Ivoire, Central African Republic and Democratic Republic of the Congo. There were 10 “situations under investigation.” Georgia, opened in January 2016 (which has prompted Russia withdrawing its signature from the Rome statue). Central African Republic II, opened May 2014. Also Mali, opened in Janurary 2013, Côte d’Ivoire (February 2013), Darfur (June 2005), Central African Republic (May 2007), Uganda (July 2004), and Democratic Republic of Congo.

The 10 “preliminary examinations” focus on war crimes or crimes against humanity in Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq (for crimes committed by United Kingdom nationals), Nigeria, Palestine, Ukraine and a case on the 2010 Humanitarian Aid Flotilla under the title “Registered Vessels of Comoros, Greece and Cambodia”. The Gaza Flotilla case is being reconsidered according to the last annual report after the Prosecutor first decision not to investigate it.

Meanwhile, not one western country or leader had been the subject of an ICC investigation. The news that the International Criminal Court (ICC) is to open an investigation into possible war crimes committed in Afghanistan by both Afghan and US military forces may have come too late for those African states that have decided to withdraw from the institution, claiming that it disproportionately targets Africa. If the ICC is to avoid the accusation that it has become more an instrument of neo-colonial power rather than a truly impartial international institution, then it cannot merely reflect great power relations and concepts in its application of justice.

In addition to founding the Court and defining the crimes of genocide, war crimes, crimes against humanity, and – as of amendments made in 2010 – the crime of aggression (for these amendments to enter into force, they must be ratified by at least 30 States and then voted on by States Parties in 2017), the Rome Statute also sets new standards for victims' representation in the Courtroom, and ensures fair trials and the rights of the defence. The Court seeks global cooperation to protect all people from the crimes codified in the Rome Statute.

The Rome Statute of the International Criminal Court is the international treaty that founded the Court. Comprising a Preamble and 13 Parts, it establishes the governing framework for the Court. Adopted at the Rome Conference on 17 July 1998, it entered into force on 1 July 2002, thereby creating the International Criminal Court. See our history. The Statute sets out the Court's jurisdiction over genocide, crimes against humanity, war crimes and – as of an amendment in 2010 – the crime of aggression. In addition to jurisdiction, it also addresses issues such as admissibility and applicable law, the composition and administration of the Court, investigations and prosecution, trials, penalties, appeal and revision, international cooperation and judicial assistance, and enforcement.

Upon referrals by States Parties or by the UNSC, or on its own initiative and with the judges' authorisation, the Office of the Prosecutor (OTP) conducts investigations by gathering and examining evidence, questioning persons under investigation and questioning victims and witnesses, for the purpose of finding evidence of a suspect's innocence or guilt. OTP must investigate incriminating and exonerating circumstances equally. OTP requests cooperation and assistance from States and international organisations, and also sends investigators to areas where the alleged crimes occurred to gather evidence. Investigators must be careful not to create any risk to the victims and witnesses.

The ICC is funded by member states using a formula similar to the one used to fund the United Nations, which means wealthier states pay more. The European Union provides over 70 percent of the ICC’s budget, something which some say violates the Rome statute that set up the court, which says that no one member state can pay more than 22 percent of the budget.

From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the reuirements of US law.

Although the United States is not a party to the ICC’s Statute, the Obama administration has been prepared to support the court’s prosecutions and provide assistance in response to specific requests from the ICC prosecutor and other court officials, consistent with U.S. law, when it is in US national interest to do so. Since November 2009, the United States has participated in an observer capacity in meetings of the ICC Assembly of States Parties (ASP). The United States sent an observer delegation to the ICC Review Conference held in Kampala, Uganda from May 31 to June 11, 2010.

On 11 June 2010, at the Review Conference of the Rome Statute, held in Kampala, Uganda, from 31 May to 11 June 2010, the Parties adopted, in accordance with article 121, paragraph 3, of the Rome Statute of the International Criminal Court, amendments on the crime of aggression to the Rome Statute by Resolution RC/Res.6. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. An “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

  • The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
  • Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
  • The blockade of the ports or coasts of a State by the armed forces of another State;
  • An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
  • The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
  • The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
  • The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

It was decided that in case of transfer of the issue of the investigation of this crime in the ICC State Party or at the initiation of the investigation by the prosecutor latter shall determine whether to accept the UN Security Council decision on the act of aggression. In the absence of such a decision the prosecutor can still continue the investigation if it receives the unanimous approval of all the judges of ICC Pre-Trial Division. The UN Security Council can defer the investigation for a year.

“If the state parties, who apparently have been masquerading in recent years as countries devoted to criminal accountability, want to leave, then they should leave,” U.N. High Commissioner for Human Rights Zeid Ra’ad Al Hussein told the court’s annual gathering 16 November 2016 at The Hague. He said he was not convinced their positions are based entirely on principle. “Quite the opposite; it appears to aim more at protecting their leaders from prosecution,” the high commissioner said. African states have complained they feel the court’s work is overly focused on their nations. While the court is pursuing several cases related to African countries, it also was conducting investigations and cases into Afghanistan, Colombia, Cambodia and other states.

President Vladimir Putin decided Russia was out of the International Criminal Court, and out of the South Ossetia investigation. Although Putin signed the Rome treaty that established the Hague-based court in 2000, Russia never ratified it. Putin signed a decree 16 November 2016 removing the country from the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity, and war crimes. Putin's decree was published on the Kremlin's website and a statement from Russia's foreign ministry said, "The court did not live up to the hopes associated with it and did not become truly independent.” Moscow was not happy with the way the ICC has treated Russia’s war with Georgia in 2008, adding it failed to see the actions by the Tbilisi government against civilians in South Ossetia - a pro-Moscow region. “In these conditions we cannot speak of trust in the international criminal court,” the ministry said. The decree comes a day after the UN General Assembly's human rights committee backed a decision condemning Russia's “temporary occupation of Crimea.”

The Foreign Ministry also pointed out that in its fourteen years of operation, the ICC has issued only only four rulings, spending over a billion dollars in the process. It was further noted in the statement that Russia is concerned with the ICC's attitude toward the events of August 2008: "The attack carried out by Saakashvili's regime on peaceful Tskhinvali, the murder of Russian peacemakers brought accusations from the ICC addressed to South Ossetian fighters and Russian military personnel. The eventual investigation of Georgian administrative officials' actions and orders was purposefully left to Georgia's jurisdiction and remains out of the ICC's attention focus."

Philippine President Rodrigo Duterte on 17 November 2016 said he might follow Russia and withdraw from the ICC, citing criticism from Western nations for a rash of killings unleashed by his war on drugs. Duterte described the ICC as “useless” and expressed frustration about the West’s allegations of extrajudicial killings and its failure to understand his crackdown on narcotics. He also appeared to blame the United Nations for failing to prevent wars all over the world.

Africa Rising

In April 2015, the African Union [AU] charged Economic Social and Cultural Council (ECOSOCC) to come up with a joint position on the ICC. The AU says the successful prosecution of Pierre Bemba, former vice president of the Democratic Republic of Congo, and the trial of Kenya’s President Uhuru Kenyatta and Deputy President William Ruto - among others - are proof the courts mainly target Africans. The committee recommended that AU member states quit the ICC unless it met three conditions, including giving heads of state immunity from prosecution. The African Union claims that it wants to strengthen the African Court of Justice and Human Rights as a possible alternative to the ICC. The outcome of two tribunals on the African continent - the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone - were widely accepted partly because of their proximity. African leaders pushed for member countries to quit the Rome-based court, which has jurisdiction in 124 nations over alleged cases of war crimes, crimes against humanity and genocide.

The African Court at Arusha, Tanzania serves as the continental court established by African countries to ensure the protection of human rights in Africa and complements the functions of the African Commission on Human and Peoples' Rights. The Court had finalized 32 applications and 87 are pending, Justice Sylvain Oré, AfCHPR President, told the Ghana News Agency in an interview, as the court begins its 43rd Ordinary Session from October 31 to November 18, 2016 at Arusha, the United Republic of Tanzania. The African Court under Article 3 of the Protocol, has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the concerned States.

Following a proposal by the Chairperson of the Assembly of the AU and head of the Federal Republic of Nigeria, President Olusegun Obasanjo, the AU decided to integrate the African Human Rights Court and the Court of Justice of the African Union. The African Court on Human and Peoples’ Rights and the Court of Justice of the African Union were merged into a single Court and established as "The African Court of Justice and Human Rights" by the Protocol on the Statute of the African Court of Justice and Human Rights. The Protocol was adopted at the AU Summit in Sharm El-Sheikh, Egypt, on 1 July 2008. The Protocol and the Statute annexed to it shall enter into force thirty (30) days after the deposit of the instruments of ratification by fifteen (15) Member States. As of 31 January, 2016 thirty (30) countries had ratified the Protocol out of 54 AU Member States.

In February 2009, the Assembly of Heads of State and Government of the AU requested the AU Commission, in consultation with the African Commission on Human and Peoples’ Rights and the AfCHPR, to assess the implications of extending the jurisdiction of the Court to try international crimes, such as genocide, crimes against humanity and war crimes. To implement this decision of the Assembly, the African Union Commission engaged a consultant to undertake a study on the implications of extending the jurisdiction of the African Court of Justice and Human Rights, including considering whether unconstitutional change or prolongation of government, could be considered a new crime.

The Malabo Protocol sought to reorganise the proposed African Court of Justice and Human Rights by creating an international criminal chamber. Adopted in June 2014, by late 2016 this protocol had yet to be ratified by any member state, and as such an Africa criminal chamber remained a mirage.

Amnesty International noted " if the Malabo Protocol comes into force, the ACJHR will have jurisdiction to try the following 14 crimes: genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and the crime of aggression. In essence, the international criminal law section of the ACJHR will serve as an African regional criminal court, operating in a manner akin to the International Criminal Court (ICC) but within a narrowly defined geographical scope, and over a massively expanded list of crimes".

The June 2015 African Union summit in Johannesburg was overshadowed by the row over South Africa's failure to arrest Sudan's President Omar al-Bashir, who is charged with genocide, war crimes and crimes against humanity in relation to massacres in the western region of Darfur. Bashir was allowed to leave South Africa rather than face arrest during the AU summit. South African government officials said they could not have arrested President Bashir because the Sudanese leader had immunity as an African head state. South African officials declined to arrest him, saying he enjoyed diplomatic immunity. Ahead of the African Union summit in July 2016, the key advisory body of the organization condemned the International Criminal Court, saying its focus has been limited to Africa since its founding in 2002. Nigeria, Senegal and Ivory Coast opposed moves at the summit to promote the AU's withdrawal from the ICC.

The Namibian government approved on 25 November 2015 a recommendation by the ruling Swapo Party for the country to withdraw from the widely-discredited International Criminal Court (ICC). Namibia, which joined the ICC in 2002, became the first African country to announce such a bold stance, coming barely two months after South Africa’s ruling African National Congress (ANC) also recommended that the country withdraws from the "glorified kangaroo court". Namibian Information Minister Mr Tjekero Tweya disclosed Cabinet’s recommendation for the country to leave the ICC at a media briefing. “Cabinet approved Namibia’s position regarding possible withdrawal from the International Criminal Court, given the discussions of the Swapo Party central committee on the issue,” said Mr Tweya.

However, he did not say when the Namibian government would withdraw, adding that “technical issues need to be sorted out first”. Tweya said Cabinet supported the withdrawal from the ICC after President Hage Geingob visited former Tanzanian president Jakaya Kikwete in Tanzania. President Geingob, who chairs the Namibian Cabinet was lobbying his counterpart in Tanzania, Tweya said. Swapo has over the years repeatedly criticised the ICC for being biased against African and other developing countries and targeting African leaders for indictment.

Kenya also raised the possibility of leaving. One case that caused considerable anger among African leaders was the ICC's pursuit of Kenyan president Uhuru Kenyatta for his alleged role in the deadly violence which erupted after his country's 2007 presidential election. The case later collapsed, amid prosecution claims of interference with witnesses and non-cooperation by Kenyan authorities.

Burundi said it will leave the ICC, citing concerns that the court targets African leaders. On 20 September 2016 a UN report accused President Pierre Bujumbura of being responsible for serious human rights violations, systematic and consistent, and warned against possible "crimes against humanity" and a "great danger of genocide." The Burundian parliament approved Bujumbura’s proposed motion to withdraw from the Hague-based court. On 12 October 2016 Burundi's parliament overwhelmingly approved a bill that calls for the country to withdraw from the International Criminal Court (ICC), marking a new stage in its growing isolation from the international community. The withdrawal of Burundi to the ICC would be a first in the history of the Court. ICC prosecutor Fatou Bensouda launched a preliminary investigation in April 2016 into murder, torture and rape in particular, in Burundi.

At an AU summit held in Rwanda in July 2016, African leaders voted by a huge margin in favor of a proposal for its 34 ICC members to withdraw from ICC jurisdiction. This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.

Not all African countries are pro-withdrawal. Senegal and "righteous" Botswana criticized South Africa's move to quit the Court. And perhaps Mauritius, that considers itself African only when the situation suits it.

South Africa said 21 October 2016 it planned to withdraw from the International Criminal Court. On 21 October 2016, the Government of the Republic of South Africa deposited its instrument of withdrawal from the Rome Statute ("Statute"), the founding treaty of the International Criminal Court ("ICC"), with the Secretary General of the United Nations. Justice and Correctional Services Minister Michael Masutha said a bill would be submitted to parliament recommending that South Africa repeal implementation of the Rome Statute that created the court. South Africa can’t provide a safe space for leaders to talk peace, he said, if it is compelled to comply with all the court’s arrest warrants.

“In exercising its international relations with foreign countries, particularly with countries in which serious conflicts occur, or have occurred, South Africa is hindered by the implementation of the Rome Statute of the International Criminal Court,” Masutha said. … “This act and the Rome Statute of the International Criminal Court compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law.”

Some analysts fear South Africa's decision could encourage other African nations to abandon the Hague-based tribunal, which prosecutes war crimes and crimes against humanity. Anton du Plessis, managing director of the Pretoria-based Institute for Security Studies, said he is not concerned about a mass African exodus from the court. He believed many of the court’s member states are not politically organized enough to agree on a withdrawal strategy.

The President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Sidiki Kaba, indicated: "Although withdrawing from a treaty is a sovereign act, I regret these decisions and invite South Africa and Burundi to reconsider their positions." "I urge them to work together with other States in the fight against impunity, which often causes massive violations of human rights," he added.

The President of the Assembly was concerned that this disturbing signal would open the way to other African States withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crimes of aggression. For Mr. Kaba, the international community must remain united to face the enormous challenge of preventing the commission of such crimes, prosecuting the alleged perpetrators, whoever they are and wherever they are, to ensure peace, stability and security of our States.

Gambia announced 25 October 2016 it was leaving the International Criminal Court, referring to its ICC acronym as the “International Caucasian Court” and accusing it of unfairly targeting Africa while ignoring the crimes of the West. The decision was particularly notable because the ICC's chief prosecutor, Fatou Bensouda, is Gambian. Gambia had tryied without success to use the ICC to punish the European Union for the deaths of thousands of African refugees trying to reach its shores. The country announced the decision on television, with Gambian Information Minister Sheriff Bojang accusing the ICC of the “persecution and humiliation of people of color, especially Africans.” Bojang went on to state that while the court is used to persecute Africans and “especially their leaders,” it ignores crimes committed by the West.

“There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted,” Bojang said. The information minister specifically noted the case of former British Prime Minister Tony Blair, whom the ICC decided not to indict over the Iraq war.

"Uganda will pronounce its position (withdrawing from ICC) during the next African Union (AU) summit (January 2017) in Addis Ababa. We expect other countries to do so. We need all the African countries to leave ICC in unison," Okello Oryem, Uganda's state minister for international affairs, told Xinhua.

A court in South Africa ruled 22 February 2017 against a government plan to withdraw from the International Criminal Court (ICC). The plan to withdraw from the Hague-based court system was ruled unconstitutional because parliament was not consulted before the notice of withdrawal was filed. The South African court asked the government to revoke its notice of withdrawal. The South African government has formally revoked its intent to withdraw from the International Criminal Court (ICC). The decision to revoke the withdrawal was made by the cabinet on 07 March 2017 and a letter to this effect was sent to the United Nations.

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Page last modified: 08-03-2017 19:33:49 ZULU