The ICC: An Animal Farm situation
Fri, 28 Apr 2017 10:24:35 +0000
By Thembani M. Phiri
As I tread these deep International Criminal Court (ICC) waters this week, not only do I feel like a tilapia in a sea full of whales and sharks, moreover, I swim against a very strong current with a divergent opinion which is arguably as pragmatic as the one I envisage to divulge in this corner.
But like a kite dancing in a hurricane i will not waiver and give my opinion concerning Zambia’s exit from the ICC to the deepest of my understanding in this debatably volatile atmosphere.
So what is the ICC? How was it created? Which countries subscribe to it and why is it essential to do so? Below are detailed answers to the fore questions.
WHAT IS THE ICC
The International Criminal Court (ICC) is described as an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands.
The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes.
The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual state refers investigations to the Court.
The ICC began functioning on 1st July 2002, the date that the Rome Statute entered into force.
The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document.
States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 124 states which are party to the ICC.
The ICC has four principal organs; The Presidency, the Judicial Divisions, the Office of the prosecutor, and the Registry.
The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court.
The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division.
The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office.
The Office of the Prosecutor has opened ten official investigations and is also conducting an additional nine preliminary examinations.
Thus far, 39 individuals have been indicted in the ICC, including Uganda rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, Libyan Leader Muammar Gaddafi, and Ivorian president Laurent Gbagbo.
HISTORY OF THE ICC
The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities.
The issue was addressed again at the a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism.
The convention was signed by 13 states, but none ratifies it and the convention never entered into force.
Following the Second World War, the allied powers established two adhoc tribunals to prosecute axis power leaders accused of war crimes.
The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders.
In 1948 the United Nations General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind prosecuted after the General Assembly, the International law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after the Second World War, and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, became a vocal advocate for the establishment of international rule of law and of an international criminal court. In his first book published in 1975, entitled Defining International Aggression: The Search for World Peace, he advocated for the establishment of such a court.
In June 1989 Prime Minister of Trinidad and Tobago A. N. R. Robinson revived the idea of a permanent international criminal court by proposing the creation of such a court by proposing the creation of such a court to deal with the illegal drug trade. Following Trinidad and Tobago’s proposal, the General Assembly tasked the ILC with once again drafting a statute for a permanent court. While work begun on the draft, the United Nations Security Council establishment two adhoc tribunals in the early 1990s. The International Criminal Tribunal for the former Yugoslavia was created in 1993 in response to large-scale atrocities committed by armed forces during Yugoslav Wars and the International Criminal Tribunal for Rwanda was created in 1994 following the Rwandan Genocide. The creation of these tribunals further highlighted the need for a permanent international criminal court.
In 1994, the ILC presented its final draft statute for the International Criminal Court to the General Assembly and recommended that a conference be convened to negotiate a treaty that would serve as the Court’s statute. To consider major substantive issues in the draft statute, the General Assembly established the AdHoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After considering the committee’s report, the General Assembly created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the preparatory committee were held at the United Nations headquarters in New York City, during which NGOs provided input and attended meetings under the umbrella organization of the Coalition of an ICC (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an International Sessional meeting in Zutphen in the Netherlands to technically consolidate and restructure the draft articles into a draft.
Finally the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court’s statute. On 17th July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States and Yemen. Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003.
The court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006. The court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers.
In 2010 the states parties of the Rome Statute held the first Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda. There they adopted two amendments to the Statute. The second amendment defined the crime of aggression and outlined the procedure by which the ICC could prosecute individuals. However, the conditions outlined in the amendment have not yet been met and the ICC cannot yet exercise jurisdiction over crimes of aggression.
STATE PARTIES
As of March 2016, 124 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceanic and roughly half of Africa. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare that they do not intend to become a party to the treaty. Four signatory states – Israel, Sudan, the United States and Russia – have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the Statute.
41 United Nations member states have neither signed nor accepted to the Rome Statute. Some of them including China and India, are critical of the court. Ukraine, a ratifying signatory, has accepted the court’s jurisdiction for a period starting in 2013.
ASSEMBLY OF STATES
PARTIES
The Court’s management oversight and legislative body, the Assembly of States Parties, consists of one representative from each party. Each state party has one vote and “every effort” has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote. The Assembly is presided over by a president and two vice-presidents, who are elected by the members to three-year terms.
The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organizations.
The Assembly elects the judges and prosecutors, decides the Court’s budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court. Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who “is found to have committed serious misconduct or serious breach of his or her duties” or ” is unable to exercise the functions required by this Statute.
The states parties cannot interfere with the judicial functions of the Court. Disputes concerning individual cases are settled by the Judicial Divisions. In 2010, Kampala, Uganda hosted the Assembly’s Rome Statute Review Conference. The Assembly meets every year rotating between New York and The Hague, the Netherlands.
In October 2016, after repeated claims that the court was biased against African states, Burundi, South Africa and the Gambia announced their withdrawals from the Rome Statute. However, following Gambia’s presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification. The High Court in South Africa ruled in February 2017 that the South African government’s notification was unlawful, and the government was required to revoke its notice with effect from 7th March, 2017. Experts believe that Kenya, Namibia and Uganda may soon follow in withdrawing from the court, while South Africa is still committed to withdrawing, leading to mass African exodus.
HOW TO WITHDRAW FROM THE INTERNATIONAL CRIMINAL COURT
Article 127 of the Rome Statute spells the process out as follows:
- “A State Party may, by written notification addressed to the Secretary General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
- “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued.
Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
MY OPINION
As I intimated last week, never have words been spoken which are no truer than the following statement. “There was a conscious policy of liquidating indigenous culture through the planned substitution of our culture with the ‘alien’ culture of a colonizing power via the education system.”
If we think outside the box, we are prone to discover that we are still psychologically enslaved in a subtle harmonious and amicable manner. It also becomes evident that our views are not as material as other states in institutions of this nature. Our contribution, financial or otherwise, to the ICC’s establishment and its current administration is nothing to beat the drum about. Are we as independent as we should desire? Independence means not to be controlled or influenced in any way by another, and in relation to an independent democratic state, it means not to be ruled or governed by foreign institutions or countries. It implies separation in forms of governance, be it legislation, judiciary and otherwise. A democratic state must believe in freedom and equality between people, and should have a system of governance based on this belief. Our current legislation, judiciary and systems of governance mirror that of foreign institutions, governments and/or states of which we claim to be independent, yet there’s little or no consideration, more so indication of inclusiveness as regards to INDIGENOUS schools of thought. If at all there is, it’s only fair to note it’s appalling insignificance.
Moreover, to add salt to our wound, we were coerced into adopting globalization for fear of being marginalized in this global village. Today, modernization has exposed fruits which are distasteful to a growing nationalist affiliated western population. Dr. Kenneth Kaunda was criticized for initiating humanism, and efforts were made to frustrate the application of this theory. This theory in my view was ideal for this nation and, if critically analyzed marginally dissimilar to systems of governance that have worked in some countries.
I have the following questions for you my readers. How long are we going to subscribe to foreign schools of thought? When are we going to have the ability to determine what is appropriate or relevant for Zambia? Are we destined to play second fiddle with no chance of them learning from us?
In a nutshell, of course the ICC is an institution which serves the interest of member states, but we all know it’s an ANIMAL FARM situation. When leaders from Western countries are prosecuted for the atrocities committed in the Arab States in recent history, only then will subscribing to the ICC become rational.
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