Balancing Principles, Politics, and Pragmatics: U.S. Policy-Making on Transitional Justice

Zachary D. Kaufman joins JiC for this post on recent transitional justice policy-making in the United States. Zachary is a Senior Fellow at Harvard University‘s John F. Kennedy School of Government and the author of ‘United States Law and Policy on Transitional Justice – Principles, Politics, and Pragmatics’ (OUP 2016).

(Cartoon: Gianfranco Uber / Cartoon Movement)

(Cartoon: Gianfranco Uber / Cartoon Movement)

As the presidency of Barack Obama draws to a close, his administration has been wrestling with its legacy on transitional justice (TJ). In May, the U.S. Department of State and the U.S. Agency for International Development (USAID) published a series of policy papers on the subject (2016 TJ Policy Papers). These white papers follow and relate to a presidential study directive (PSD-10) President Obama decreed in 2011 that created an interagency Atrocities Prevention Board (APB). PSD-10 states: “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”

The executive branch’s recent policymaking on TJ occurred after I published my new book, United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics. In that book, I challenge the “legalist” paradigm, which postulates that liberal states pursue war crimes tribunals because their decision-makers hold a principled commitment to the rule of law. I develop an alternative theory—“prudentialism”—which contends that any state may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue TJ options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. As such, prudentialism allows for even liberal states, such as the United States, to support non-legalistic TJ options.

This blog post provides an overview of the 2016 TJ Policy Papers. These white papers and my research show that the U.S. government continues to balance politics, pragmatics, and principles in formulating its policy on TJ. Consequently, given the historical case studies my book examines and more recent situations, prudentialism correctly describes not only the past but also the present U.S. government approach to TJ.

U.S. Policy Papers on Transitional Justice

According to Ari Bassin, Senior Policy Advisor on Transitional Justice in the State Department’s Office of Global Criminal Justice, the 2016 TJ Policy Papers are the executive branch’s first public white papers on the subject. A joint effort of the State Department and USAID, the release of these unprecedented white papers demonstrates that the U.S. government increasingly views and officially acknowledges engagement in TJ as a significant component of its foreign policy.

The six white papers cover TJ generally, amnesties, criminal prosecutions, lustration and vetting, truth commissions, and reparations. The white papers do not address exile, indefinite detention, or lethal force as TJ options. As I establish in my new book, the U.S. government’s TJ toolkit has also featured these latter options as either serious considerations or actual policies.

The white papers describe how the U.S. government engages on TJ: through providing financial and technical support as well as by promoting TJ through diplomacy, public statements, laws, resolutions, and other actions. The white papers omit, however, that the U.S. government has also engaged on TJ through contributing staff to such mechanisms.

The white papers offer the U.S. government’s definition of “transitional justice”: that it “refers to a range of measures—judicial and non-judicial, formal and informal, retributive and restorative—employed by countries transitioning out of armed conflict or repressive regimes to redress legacies of atrocities and to promote long-term, sustainable peace.” This definition of TJ accords with my own: “Transitional justice refers to both the process and objectives of societies addressing past or ongoing atrocities and other serious human rights violations through judicial and nonjudicial mechanisms.” Acknowledging implicitly—as Phil Clark, Kalypso Nicolaïdis, and I argue explicitly—that the first word in the term “transitional justice” may be a misnomer, the white papers also state: “There may be questions about the applicability of the concept of ‘transition’ to all relevant scenarios; consequently the issues noted . . . may also be discussed using the term ‘dealing with the past’ or ‘the promotion of truth, justice, reparation, and guarantees of non-recurrence.’

The white papers invoke PSD-10. In doing so, the U.S. government directly links TJ with atrocity prevention by arguing: “Effectively addressing past atrocities through these approaches is an important tool in preventing the recurrence of atrocities, a goal that is a core national security interest and core moral responsibility of the United States.” Continue reading

Posted in Guest Posts, Transitional Justice, United States | Tagged | Leave a comment

Invitation to Events in London

screen-shot-2016-11-10-at-8-24-21-am

Dear readers,

For those of you in London, I will be participating in two public events in the city next week. The first will be a launch of my book, Justice in Conflict – The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, followed by a panel discussion on the future of the ICC. The event will feature Shehzad Charania, Kirsten Ainley, Kevin Jon Heller, Mark Hoffman, and myself. It will take place on Wednesday 16 November from 6.30 – 8.00pm at the London School of Economics. Details are available here.

The second event, taking place on 17 November from 5:00-6:30, will be a talk at SOAS entitled ‘Prosecutorial Opportunism and the International Criminal Court’. I will discuss the decision-making of the ICC’s Office of the Prosecutor as well as the future direction of prosecutions at the ICC. Details of that event can be found here.

Both events are open to the public. I hope to see some of you there!

Mark

Posted in JiC News, Justice in Conflict | 3 Comments

What the ICC Can Do to Improve its Relationship with African States

Allegations that the International Criminal Court (ICC) is biased against ‘Africa’ are nothing new. They have persisted for nearly a decade now and have only achieved greater salience in the wake of the recent decisions of South Africa, Burundi, and The Gambia to withdraw from the ICC. While we don’t tend to re-post pieces, this article from May 2013 (!) on public relations advice for the International Criminal Court (ICC) seems more pertinent today that ever. I hope it helps to generate debate on what ICC officials can do to tackle the perceived and valid shortcomings of its work. 

Many perceive the International Criminal Court as being biased and 'against' Africa (Photo: Screen shot from the film, "The Prosecutor")

Many perceive the International Criminal Court as being biased and ‘against’ Africa (Photo: Screen shot from the film, “The Prosecutor”)

Allegations that the International Criminal Court (ICC) is biased against Africa aren’t going away. On the contrary, in the wake of the victory of Uhuru Kenyatta in Kenya’s recent Presidential elections, they seem to be increasingly common. At an African Union summit, Ethiopia’s Prime Minister Hailemariam Desalegn declared that the ICC is “hunting” Africans because of their race.

I continue to maintain that the Court is neither biased against Africa, neo-colonial, nor racist. Africa is not monolithic and many states continue to support the ICC and its mandate. As has often been pointed out, many African citizens don’t share the views of their governments and, in fact, would like to see them held accountable. At the same time, even if some cases that aren’t before the Court should be, no case or situation currently before the Court shouldn’t be. As Abdul Tejan-Cole writes, “while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious.” Moreover, in cases where the Court has functioned to bolster the legitimacy and the political and military aims of African leaders (like Museveni in Uganda, Ouattara in Cote D’Ivoire, and Kabila in the Democratic Republic of Congo), governments have been more than happy to accept and manipulate the Court’s interventions for their own political purposes.

At the same time, it would be folly to deny the fact that the ICC works within an international structure that is far too unequal and within an international hierarchy that no longer reflects the distribution of power in the world. This structure reinforces the reality that powerful states are too often shielded from accountability. The Court’s promise was to transcend this by being an impartial institution independent of the realpolitik machinations of institutions like the United Nations Security Council and ‘great powers’ like the United States. It hasn’t been able to do so. That’s no secret. No honest advocate of international criminal justice can say that he or she is satisfied with the current reach of international criminal justice. The Court is selective and that is a problem.

So how did we get here? In my view, part of the problem comes down to the ‘perception game’ – how the ICC has communicated its work and decision-making.

Too often the ICC and its strongest proponents have responded to criticisms by being reactionary and defensive rather than reflective and measured. Far too often the Court has blamed its negative perception on external sources, refusing to take responsibility for how it is perceived by others. In an interview that touched on the question of the Court’s perceived bias against Africa, Bensouda suggested that it was the media’s fault. More recently, when recently asked about whether the Court has dealt poorly with the perception that it is biased against Africa, Bill Pace, the head of the Coalition for the International Criminal Court, responded by apportioning blame on the media and academia (update: see Pace’s response to this post in the comments below).

It is unwise and possibly even dangerous to refuse to understand how you are perceived by others, whether you are a state, an institution or an individual. It is a refusal that demonstrates, above all, immaturity. The ICC needs to – and can – avoid going down this path. But it can only do so if it is honest and accepts that it has an active role to play in the ‘perception game‘. It also has to realize that its current messaging strategies aren’t working.

Working against the Court is the fact that the playing field in the ‘perception game’ is highly uneven. In comparison to states like Kenya and institutions like the African Union, the ICC has very few resources for counter-messaging. Sadly, key states that ostensibly support the Court’s work haven’t picked up the slack.

But there’s also another problem. As I recently argued, the ICC has responded to allegations of being biased by consistently repeating the same set of responses: the vast majority of African states have signed and ratified the Rome Statute; there are numerous preliminary investigations in situations outside of Africa; the Court can only investigate situations under its jurisdiction; the argument that the ICC is biased is the work of a few autocrats and anti-ICC dictators afraid of justice, etc. All of these arguments are, to varying degrees, true. The problem is that they seem to be falling on deaf ears and have been for quite some time. They may be well-versed amongst proponents of the Court but, again, it is worth asking: has anyone who initially believed that the ICC was biased against African been convinced that it isn’t?

So what can the ICC do? Here are a few suggestions from an ICC supporter who wants to get beyond this ICC-Africa debate.

Don’t externalize blame to the ‘media’ and ‘academia’. If a particular article or post is unfair or inaccurate, Court officials should feel free to engage and respond. Some journalists and academics will be inclined to support the ICC and some will not but the institution is not unique in this instance. It does no good to blame academia or media and can easily come across as petulant. If the media is consistently not reporting the narrative that the Court is trying to establish, it is probably time to try a new communication strategy.

– Assemble a working group of experts on the politics of the ICC, including staff who work on ICC-state relations, along with communications experts. Ask them to come up with a professional communication strategy which does not shy away from political controversies or rely exclusively on legal arguments.

– Carefully consider where criticisms of the Court are coming from. Do not dismiss them out of hand. Again, don’t blame it on ‘bad apples’ even if they clearly have a role to play. It is virtually impossible that a persuasive line of criticism has no legitimate grounds whatsoever. Invite and welcome fair critics to come to the Court and voice their opinions. Take the time to understand where critics and criticisms are coming from. Some of the suggestions below may help in this regard. Continue reading

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice | Leave a comment

Ten African States Who Will Stick with the International Criminal Court

South African President Jacob Zuma (Photo: Getty)

South African President Jacob Zuma (Photo: Getty)

In the wake of South Africa’s, Burundi’s and The Gambia’s decision to withdraw from the International Criminal Court (ICC), the focus of observers and commentators has been on who is next. Who will join the “queue” to leave the ICC? Which state will be the next “domino” to fall? Where is the the next candidate to partake in this “mass exodus”. Much less attention has been paid to which African states won’t be joining the withdrawal parade. To that end, here are ten current African ICC member-states that I believe won’t be heading for the exit, starting with the obvious ones — those states that have declared their support for the ICC in the wake of recent withdrawals.

Botswana

The government of Botswana has made by far the most emphatic statement criticizing the recent spate of withdrawals from the Court. In a press release, the government exclaimed that withdrawing from the ICC undermined victims and the global fight for impunity. Botswana has regularly stood alone in publicly proclaiming its support for the ICC, particularly in African Union (AU) summits. Notably, Botswana also doesn’t believe that the Malabo Protocol, which would allow the African Court on Human and People’s Rights to prosecute international crimes, should go forward given its immunity carve-outs for state officials and the continued existence of the ICC. Botswana isn’t going anywhere.

Senegal

Senegal was among a handful of states that ensured that the issue of an Africa-wide withdrawal from the ICC did not reach the agenda of Head’s of States at the July AU summit in Kigali, Rwanda. The country’s Justice Minister, Sidiki Kaba, also acts as the President of the ICC’s Assembly of States Parties (ASP). Representing his government and the ASP, Kaba has expressed his regret over the decision of African states to withdraw from the ICC.

Sierra Leone

It is rare to hear much from Sierra Leone regarding the ICC. The country, of course, has a rich and unique place in the history and development of international criminal justice. The Special Court for Sierra Leone (SCSL) examined atrocities committed in the country and, in a landmark case, convicted and sentenced former Liberian President Charles Taylor to fifty years in prison for war crimes and crimes against humanity during the country’s civil war. More pertinently, Sierra Leone’s Ambassador to the Netherlands stated this week that “just because three states are leaving, does not mean Africa is leaving” the ICC.

Tunisia

Tunisia was among those states that pressed AU delegates to avoid the agenda item of an Africa-wide mass withdrawal reaching the Heads of States’ negotiation table at the last AU summit. Moreover, Tunisia is the most recent African state to become a member of the Court. It joined in 2011, in the wake the Arab Spring. The government in Tunis has never suggested, or even implied, that it held any regret over the decision and its recent actions at the AU suggest its happy as an ICC member-state.

Nigeria

Like Tunisia and Senegal, Nigeria stood up for the ICC at the AU summit in Kigali. Ongoing violence in the country is currently under preliminary examination by the ICC and in its late stages. It seems unlikely that Nigeria wants the ICC to open an official investigation. But the relationship between the ICC and Abuja is good. The country is cooperating with the Court to ensure that, wherever possible, it is able to bring perpetrators of mass atrocities to account itself. Continue reading

Posted in Africa Group for Justice and Accountability (AGJA), African Union (AU), Botswana, Central African Republic (CAR), Democratic Republic of Congo, Gabon, Gambia, International Criminal Court (ICC), International Criminal Justice, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Mali, Niger, Nigeria, South Africa | 4 Comments

Some Thoughts on South Africa’s Withdrawal From the International Criminal Court

South Africa ICC withdrawal

South African President Jacob Zuma shares a laugh with Sudanese President Omar al-Bashir in 2011 (Photo: Ntswe Mkoena / EPA)

Contrary to the suggestion of some, the dust on South Africa’s and Burundi’s (and Gambia‘s) withdrawal from the International Criminal Court (ICC) has not settled. It won’t for some time. These two withdrawals have sparked an intense debate on the future of the ICC. Many observers have already provided cogent commentary since South Africa deposited its notice of withdrawal to the United Nations Secretary General. In this post, I want to offer and add a few thoughts on what South Africa’s and Burundi’s decisions mean.

1)    On Africa and ICC, I got it wrong

I would be remiss if I did not admit that my previous post, on Burundi’s potential withdrawal, was inaccurate. Indeed, I considered calling this post “My Awkward — And Mostly Pointless — Post on ICC Withdrawals”. In that piece, I argued that the decision of President Pierre Nkurunziza made little sense given that the Africa-ICC relationship was getting better, not worse. I stand by the empirical observations in that post — namely that Gabon’s self-referral and the dampened pressure for an Africa-wide withdrawal at the African Union (AU) matter. I also continue to believe that, for those elements supporting a mass withdrawal of African member-states of the ICC, Burundi was a poor choice (which, as argued below, helps to explain South Africa’s own decision to withdraw). But my diagnosis was wrong and it led to a faulty prescription.

To be perfectly clear, South Africa’s withdrawal from the ICC hurts the Court. There may be a few silver-linings and certainly many lessons, but there is no sugar coating these developments.

2)    What’s with the ICC Withdrawals — Why Now?

Why did South Africa’s executive decide to move now? The government has given its own reasons, focusing on its intent to avoid obligations to arrest ICC-indicted heads of state involved in peace processes. It also wants to avoid domestic civil and criminal sanction over their hosting of Sudanese President Omar al-Bashir in Pretoria last year — although withdrawing certainly can’t achieve that aim. South Africa may also have timed its decision as a means to sucker-punch the ICC’s Assembly of State Parties conference which begins in two weeks.

But it is also clear that South Africa wanted to “beat Bujumbura to the punch”. South Africa did not decide to withdraw last week. But, because of Burundi, they sped up the process of doing so. For champions of international criminal justice, Burundi would have made an ideal leader for any Africa-wide withdrawal process; few, if any governments, would be keen to follow any initiative led by Nkurunziza. There are ongoing and serious tensions between African states and Burundi. Nkurunziza’s friends on the continent (especially those in high places) are few and far between. When Desmond Tutu exclaimed that “African leaders behind the move to leave the ICC are effectively seeking licence to kill, maim and oppress their people without consequences”, he was surely speaking of the likes of Nkurunziza and his hired guns.

South Africa’s decision to withdraw was not made in solidarity with Burundi nor was it to protect or promote Nkurunziza. Not a single South African government officials has mentioned Burundi’s potential withdrawal in the same breath as South Africa’s. Instead, it appears that Burundi’s decision sparked a ‘withdrawal race’. The number of competitors remains unclear, but South Africa jumped on the opportunity. On Wednesday the 19th of October, just one day after Nkurunziza signed a presidential decree to withdraw from the Court, South Africa’s cabinet met to draft an executive order withdrawing the country from the ICC. If anyone was going to lead an Africa-wide withdrawal, it wasn’t going to be Burundi. South Africa thus judged that it should be in the vanguard. So President Jacob Zuma’s cabinet put their pedal to the metal and accelerated a process of withdrawing that was, it should be noted, already in the works. That it was South Africa — and not Burundi — who was the first to withdraw from the ICC makes the possibility of others following suit more likely.

3)    Expect some further Withdrawals but no Mass Exodus

There have been two broad reactions to South Africa’s decision to withdraw from the ICC. One set of responses has bemoaned — or, in some cases, celebrated — the loss of South Africa as an ICC member-state. The second has warned of — or, again, celebrated — a potential “domino effect” or “mass exodus” by African states from the Court. My prediction is that a handful of states (somewhere between 5-10) will seriously explore withdrawing, some will follow suit, there will be increased diplomatic pressure at the AU for more to do so, but most African ICC member-states will remain members.

It is worth clarifying that Burundi has not deposited any notice of withdrawal from the ICC and thus has not begun the process ending its membership in the Court. Still, there are a few other  key candidates for withdrawal. Namibia, Kenya, and Uganda have all previously expressed an interest in withdrawing from the ICC: Namibia’s cabinet has voted to withdraw; Kenya’s parliament has twice voted to withdraw from the Court; and Ugandan ministers have regularly suggested that the country is preparing its own unceremonious exit. Yet none of these states have expressed support for South Africa’s decision. Nor have they given any clear signal that they would, indeed, withdraw in the coming days. Namibia has remained silent on the matter. A Ugandan minister has stated the country was “undecided” about any withdrawal. And a Kenyan official said that any decision to withdraw was up to President Uhuru Kenyatta’s cabinet. All three may end up peacing out. But it isn’t as clear as the dooms-day predictions may suggest. Continue reading

Posted in Botswana, Gambia, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa, Sudan | 2 Comments

Transitional Justice Battlegrounds: Another Bad Week in Burundi

Astrid Jamar joins JiC for this guest-post on recent developments regarding transitional and international criminal justice in Burundi. Astrid is a Research Assistant in Political Settlements Research Programmes at the University of Edinburgh’s School of Law.

Political violence erupted when President Pierre Nkurunziza sought a third term. (Photo: BBC / Getty)

Political violence erupted when President Pierre Nkurunziza sought a third term. (Photo: BBC / Getty)

Transitional justice has been taken a number of worrying steps in Burundi. While the Truth and Reconciliation Commission is preparing for public hearings addressing crimes committed between 1962 and 2008, Burundi has been engulfed in political conflict since the controversial candidacy of Pierre Nkurunziza and his re-election for a third presidential mandate in 2015. From the beginning of the crisis, gross human rights violations have been widely reported, making the problem of impunity even more serious. Two decisions from the Burundian authorities over the past week illustrate their attitude towards the problem of impunity in relation to ongoing crimes: the Burundian government’s declaration that the UN human rights investigators are persona non grata in Burundi after the publication of their report on Burundi; and a law has been adopted to withdraw from the International Criminal Court (ICC).

These decisions are in line with other rejections by Burundian authorities of international involvement in the crisis. This includes the refusal of an African Prevention and Protection Mission in Burundi – MAPROBU from the African Union – or a UN Police Mission to be deployed, refusal to engage in the East African Community-led dialogue with the armed oppositions. They also demonstrate the failure of international initiatives to effectively promote human rights and the international justice agenda. Despite rhetorical and policy commitments towards transitional justice and human rights from Burundian authorities and international donors, the human rights situation has severely deteriorated over the past few years. This piece aims to place these recent developments in the context of the national and international political battles in play, and underlines the crucial need to refocus the debate on the implications for Burundians.

Old and Recent Problems of Impunity

The problem of impunity is not new to Burundi. In 2000, the Arusha Peace Agreements provided for truth-seeking and judicial mechanisms to address the legacies of four decades of violence. None of them has yet been fully implemented. After long and difficult negotiations, a truth and reconciliation commission (TRC) was established in 2014 and its implementation was launched in March 2016. Even before the current crisis emerged, most scholars assessing transitional justice in Burundi agreed that there were limited prospects for accountability. Given the current situation and the departure of many critical voices from the country, the potential contributions of the TRC are even more questionable.

In parallel, a United Nations Independent Investigation on Burundi (UNIIB) was established in December 2015, among other regional and international responses to the ongoing crisis. Three independent experts were appointed. They initially planned four visits to Burundi. Only two missions could take place due to political and security problems.

Published on 20 September 2016, the experts’ final report concludes that, even if no exact overview of the situation could be established given the security risks in investigating these crimes, more than one thousand people have been killed, thousands have reportedly been tortured, unknown numbers of women have been victims of various forms of sexual crimes, hundreds of people have disappeared, and thousands remain in illegal detention. From April 2015 to August 2016, 286,036 sought refuge in neighbouring countries, according to the UN HCR. Overall, the 23-page report clearly denounces the political and targeted nature of crimes committed by security forces. It acknowledges third parties also committed gross human rights violations. However, the report notes “the responsibility for the vast majority of these violations should be laid at the door of the Government”.

Political Battles Around Ongoing Problems of Impunity

On several occasions, the investigators denounced the “blanket denial of all violations”, the lack of responses to numerous communications and the refusal of most suggestions from the authorities, and non-existent mechanisms of accountability by the government, resulting in a situation where impunity is endemic. As a result of the report, the UN OCHR Council created a commission of inquiry to conduct “investigation into human rights violations and abuses in Burundi since April 2015, and to identify alleged perpetrators”. For people keeping a close eye on Burundi, the content of the report is not necessarily revealing new elements. Of course, it provides a more authoritative voice to denounce the alarming situation. The reactions from Burundian authorities, including key actors in charge of human rights and rule of law matters, are leading to political battles with critical voices, including the UN, and representation battles about what is happening in Burundi rather than addressing the situation. Continue reading

Posted in Burundi, Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice, Justice, Transitional Justice, United Nations | 5 Comments

Gabon Refers Itself to the ICC as Others Threaten to Withdraw

Stephen Lamony joins JiC for this article on Gabon’s self-referral to the International Criminal Court (ICC) and the threat of African Union states to withdraw from the Court. Stephen is the Head of Advocacy and Policy, Coalition for the International Criminal Court (CICC). The views expressed here are his own and do not reflect the CICC.

Gabon International Criminal Court

Police patrol the streets in Libreville, Gabon, earlier this year (Photo: AFP)

As the African Union considers its next action plan for mass withdrawal from the Rome Statute of the ICC, the Minister of State, Minister of Justice and Human Rights, and Keeper of Seals of the Gabonese Republic voluntarily referred a situation to the prosecutor of the ICC. The referral, currently being examined by the Office of the Prosecutor, will no doubt attract academic debates and criticism from African leaders who believe that the ICC is targeting Africa, as most ICC investigations are African. However, most of these situations were referred to the court by African leaders.

The referral by Gabon is a particularly surprising turn of events. Jean Ping, a Gabonese politician and a former AU Commission person, was a staunch critic of the ICC for allegedly targeting Africa. His support for ICC investigations in Gabon contradicts his previous opinion, as he now states that “We ask Amnesty International and the ICC Prosecutor to go to Gabon to bring to light the events that occurred.” It seems that some states will criticize the court when it suits them, but utilize its investigations when it is in need of assistance to hurt their enemies.

This essay seeks to address arguments of African bias which may have contributed to threats from African states to withdraw from the ICC.

Counting Down Africa’s Threats of Withdrawal from the Rome Statute

Negative perceptions about the ICC have culminated in repeated pressure by a small group of African leaders to press for African member withdrawal from the Rome Statute of the ICC. To date, those efforts have failed, with at least four failed attempts.

The first call for withdrawal was made in 2009 when Libya’s state minister for African Affairs, Abdul Salam Al-Tereyk, tried to mobilize African states who are parties to the Rome Statute to withdraw from the ICC. However, withdrawal did not take place. This is because African states parties such as the Botswana and the Democratic Republic of Congo (DRC) opposed it. Some states reaffirmed their support for the Court, either because they simply preferred suspension of the case for a year or didn’t like the fact that the agenda for withdrawal was driven by non-state parties like Libya and Sudan. At the same time, the AU Assembly also called on African states to not cooperate with the ICC in arresting and surrendering Sudanese president Omar Al-Bashir to the ICC, which has challenged the court’s ability to function effectively.

Two years later, the vice president of Kenya, Kalonzo Musyoka, traveled to South Africa and Uganda to garner diplomatic support for withdrawal ahead of the January 2011 AU Summit in Ethiopia. The Kenyan parliament accused the ICC of “Western Imperialism” and “anti-African bias.”

The Kenyan government was unperturbed by the lack of enthusiasm for ICC withdrawal. In October 2013, they again called for a withdrawal over the trial of Kenyan Deputy President William Ruto. The Kenyan government was successful in obtaining an extraordinary AU summit on the ICC. But again, no African State withdrew from the ICC. Nevertheless, these major setbacks in the attempt for withdrawal from the ICC did not lessen Kenya’s determination to undermine the ICC. In fact, these setbacks have seemed to embolden them to continue their campaign. Continue reading

Posted in Gabon, Guest Posts, International Criminal Court (ICC), International Criminal Justice | Tagged | 1 Comment