tag:theconversation.com,2011:/ca/topics/rome-statute-22585/articlesRome Statute – The Conversation2023-09-18T21:13:45Ztag:theconversation.com,2011:article/2113062023-09-18T21:13:45Z2023-09-18T21:13:45ZCanada’s war crimes investigation may not deter Russia, but it matters to Ukrainians<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canadas-war-crimes-investigation-may-not-deter-russia-but-it-matters-to-ukrainians" width="100%" height="400"></iframe>
<p>In June 2022, United States Attorney General Merrick Garland <a href="https://www.nytimes.com/2022/06/21/world/europe/merrick-garland-ukraine-war-crimes.html">travelled to Ukraine</a> to call for the prosecution of Russian war crimes. </p>
<p>“The United States is sending an unmistakable message” to those who have committed atrocities, he said. “There is no place to hide.” </p>
<p>There’s only one problem: American hands are tied when it comes to the international prosecution of war crimes. That’s because it opted out of the International Criminal Court (ICC) due to objections over the <a href="https://www.icc-cpi.int/about/how-the-court-works">court’s jurisdiction</a> that allows it, <a href="https://how-the-icc-works.aba-icc.org/">under certain conditions</a>, to pursue people outside their own state borders. </p>
<p><a href="https://www.bbc.com/news/world-europe-38005282#">Russia has also withdrawn from the ICC</a>. Ukraine isn’t a member; it signed but didn’t ratify the court’s statute.</p>
<p>That means it will fall to <a href="https://asp.icc-cpi.int/states-parties">third-country signatories to the ICC</a> like <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">Canada</a> to investigate and prosecute Russian war crimes in Ukraine.</p>
<h2>Institutionalizing war crimes</h2>
<p>Around the First World War, the great powers began codifying the laws of war in <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">several conventions</a> <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">and treaties</a>. </p>
<p>Building on centuries of law, these agreements specified when countries could go to war and under what conditions, spelled out the treatment of both combatants and non-combatants and limited the use of weapons and other practices during warfare. </p>
<p>These fledgling agreements did little to prevent the outbreak of another global conflict, but they did provide the foundation for the world’s first international tribunals in Tokyo and Nuremberg following the Second World War.</p>
<p>That marked a decisive moment for international law, representing the first time national leaders were held accountable for war crimes on the world stage.</p>
<p>Under American stewardship, the immediate post-Second World War period witnessed a massive expansion of international law. </p>
<p>New treaties were drafted <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">criminalizing genocide</a> and <a href="https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml">crimes against humanity</a>. New organizations like the <a href="https://www.un.org/en/">United Nations</a> were born. </p>
<p>A liberal rules-based international order began to emerge, setting fundamental limits on state sovereignty — particularly in the conduct of war, and even within national boundaries. </p>
<p>But this progress halted with the start of <a href="https://www.nationalww2museum.org/war/articles/cold-conflict">the Cold War; the standoff between the Soviet Union and the U.S. put the prosecution of war crimes on ice</a>. </p>
<p>Few leaders were held accountable for their crimes as superpowers shielded them from prosecution. </p>
<h2>UN creates the ICC</h2>
<p>Following the Soviet collapse, and the emergence of the U.S. as the sole remaining global superpower, the UN Security Council organized <a href="https://www.un.org/securitycouncil/content/repertoire/international-tribunals">international tribunals</a> to address genocide, war crimes and other atrocities committed during conflict. </p>
<p>These tribunals were situational, focused on conflicts in Rwanda and the former Yugoslavia. The UN then used its renewed power to formalize them in the Rome Statute, <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">the founding document of the ICC</a>.</p>
<p>This was made possible by a legal innovation: the creation of a permanent international tribunal that would enable signatories to bring war criminals to justice.</p>
<p>Even third parties, with no apparent interest, could investigate and refer war criminals to the international body under certain circumstances. </p>
<p>But in a dramatic about-face, the George W. Bush administration <a href="https://www.hrw.org/news/2002/05/06/united-states-unsigning-treaty-war-crimes-court">withdrew the U.S.</a> from the ICC, fearing the court <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2450&context=faculty_scholarship">might complicate</a> its so-called war on terror. </p>
<p>Nevertheless, the ICC came into existence in 2002, and the court began issuing arrest warrants and prosecuting war criminals. </p>
<p>Without the U.S., however, its activities remained restricted. For the next decade, prosecutions were limited to the African continent, leading to allegations of <a href="https://iccforum.com/africa">systemic bias</a>. </p>
<p>There are still questions about whether the ICC can hold war criminals to account more broadly — and they’ve only intensified during the war in Ukraine. </p>
<h2>Canada’s role</h2>
<p>In March 2022, 39 countries, including Canada, <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states">referred the war in Ukraine to the ICC</a>. At the same time, the RCMP <a href="https://www.rcmp-grc.gc.ca/en/news/2022/a-statement-the-partners-canadas-war-crimes-program-the-conflict-ukraine">launched an investigation</a> into alleged war crimes committed by Russia in Ukraine.</p>
<p>This is the first <a href="https://www.ourcommons.ca/DocumentViewer/en/44-1/SDIR/meeting-9/evidence">real-time war crimes investigation</a> in Canada’s history, and one of the first globally. </p>
<p>The ICC has laid charges against Russian President <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">Vladimir Putin</a>, accusing him of human rights abuses in Ukraine.</p>
<p>These developments mark a major change in Canada’s appetite for investigating war crimes. Before joining the ICC, Canada had a checkered history of holding war criminals accountable, even when they arrived on its shores. Canada was accused, for example, of providing <a href="https://www.cbc.ca/news/canada/nazi-war-criminals-in-canada-1.1026670">shelter to Nazi war criminals</a> and collaborators. </p>
<p>Canada’s probe into alleged ongoing war crimes in Ukraine suggests it now has the <a href="https://www.international.gc.ca/world-monde/stories-histoires/2022/war-crimes-investigated_crimes-guerre-enquetes.aspx?lang=eng">political will</a> to investigate these atrocities even when they happen outside of its borders.</p>
<p>Given Canada’s <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">role in the creation of the ICC</a>, the country’s leadership on this front is appropriate. </p>
<p>Efforts to hold Russia accountable have also engaged a keen and highly activist group: Ukrainian Canadians. </p>
<p>As they <a href="https://data.unhcr.org/en/situations/ukraine">welcome refugees</a> and lobby the government, Ukrainian Canadians have helped collect war crimes testimonials that could one day be used to prosecute Russia.</p>
<p>Newly arriving Ukrainians to Canada <a href="https://ukraine.rcmp.ca/responseForm?lang=en">are greeted by posters and pamphlets printed in English, French, Russian and Ukrainian</a> asking them to report their recollections to the RCMP while their memories are still fresh.</p>
<p>Nonetheless, despite the unprecedented steps Canada and other states are taking to put Russia on notice, it’s doubtful they’ll ultimately result in any concrete forms of Russian accountability. </p>
<h2>Creating a historical record</h2>
<p>Although some of these measures have apparently made top <a href="https://www.theguardian.com/world/2023/sep/11/lula-putin-g20-brazil-arrest">Russian officials more circumspect</a> when travelling internationally, it’s highly unlikely alleged Russian war criminals will end up before Canadian courts.</p>
<p>Globally, the <a href="https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/">impact also seems limited</a>. Russia remains a nuclear power and UN Security Council member, further underscoring the improbability of future prosecutions. </p>
<p>However, the RCMP investigation is important. It signals a new path for Canada that prioritizes international law and corrects for past policy failures that saw the country provide safe harbour to war criminals. </p>
<p>For Ukrainian-Canadians, the investigation validates their experiences. Canada is helping create a historical record. The investigation will form one of the pre-eminent repositories of testimonials from recently arrived refugees. </p>
<p>Canada has taken on the sacred duty of creating and safeguarding a dark moment in Ukrainian history — and this matters to the victims of Russia’s war. </p>
<p>As Alexandra Chyczij, president of the Ukrainian Canadian Congress, told us in an interview: </p>
<blockquote>
<p>“What is important today is that the massive evidence of the myriad, systemic Russian crimes against humanity, war crimes and terrorism – committed under the direction of the Russian political leadership – be documented, collected and preserved.”</p>
</blockquote><img src="https://counter.theconversation.com/content/211306/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The war crimes probe signals a new path for Canada that prioritizes international law and corrects past policy failures, while validating the experiences of Ukrainians.Jamie Levin, Assistant Professor of Political Science, St. Francis Xavier UniversityKiran Banerjee, Assistant Professor of Political Science & Canada Research Chair, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1958782023-01-16T11:52:42Z2023-01-16T11:52:42ZDominic Ongwen: how the case of a former child soldier exposed weaknesses in international criminal law<p>Guilt and innocence are rarely clear-cut, even in the most heinous of crimes. The recent appeal of Dominic Ongwen, former commander in the Lord’s Resistance Army (LRA), shines a light on the complexity of defence in international criminal law.</p>
<p>In December, the International Criminal Court (ICC) <a href="https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_07146.PDF">refused</a> Ongwen’s appeal, cementing his conviction and <a href="https://www.icc-cpi.int/news/dominic-ongwen-sentenced-25-years-imprisonment">25-year prison sentence</a> for numerous charges of war crimes and crimes against humanity.</p>
<p>Ongwen was convicted of some of the most egregious crimes in international law: rape, sexual slavery, torture, recruitment of child soldiers, and various crimes against people living in camps for those <a href="https://www.unhcr.org/uk/internally-displaced-people.html">internally displaced</a>. </p>
<p>During his trial, Ongwen admitted that he had carried out the acts, but did not admit guilt. Instead, he relied upon two defences to argue for exoneration: mental disease and duress. Ongwen was abducted at around nine years old and recruited as a child soldier, before rising through the ranks of the LRA to the position of commander. He argued that his experience as a child soldier and the brutal regime of the LRA left him with no other choice than to comply with orders to commit war crimes and crimes against humanity. </p>
<p>The defences Ongwen used are part of the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/icc-statute-1998">Rome Statute</a>. The 2002 treaty sets out the law of the ICC, including which crimes can be prosecuted by the court. It also codifies the defences that can be used by the accused. </p>
<p>Ongwen is, and remains, the <a href="https://www.icc-cpi.int/cases">first defendant</a> before the ICC to use any of the defences set out in the Rome Statute. This means it is the first time that the <a href="https://www.ibanet.org/article/E3AFEA70-DB3A-4FC4-90B0-E15731950A59">court has ever had to consider</a> how duress and mental disease might apply. </p>
<h2>The Rome Statute</h2>
<p>The rejection of Ongwen’s appeal demonstrates that the bar for the defence of duress in respect of serious violations of international criminal law remains high, and potentially impossible to attain. </p>
<p>The inclusion of defences in the Rome Statute has long been contentious. Amnesty International, in its submissions to the drafters of the treaty, stated that allowing a duress defence for the most serious crimes imaginable was <a href="https://www.amnesty.org/en/wp-content/uploads/2021/06/ior400061997en.pdf">“inappropriate”</a>, and that certain defences, such as superior orders, should be excluded entirely.</p>
<p>The final version of the Rome Statute set out six available defences: self-defence, mental disease or defect, duress, superior orders, intoxication and mistake. Each of the defences, if pleaded successfully, would result in exoneration of the accused. It is also possible for any of the defences to be considered in <a href="https://www.icc-cpi.int/sites/default/files/RulesProcedureEvidenceEng.pdf">mitigation of punishment</a>. </p>
<p>After Ongwen, we still know little about what a successful defence of duress might look like. Setting out the defences as complete justifications for action makes this task much harder. A more nuanced approach in the Rome Statute, including distinctions between full and partial defences, and factors which may be considered in mitigation of punishment, would improve the law.</p>
<h2>A long pursuit</h2>
<p>Ongwen’s surrender in 2015 marked the end of a pursuit lasting almost a decade. Uganda referred the conflict with the LRA to the International Criminal Court in 2004. Ongwen’s arrest warrant was unsealed in 2005. But it was not until 2015, when he <a href="https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_00477.PDF">surrendered</a> to authorities in the Central African Republic, that he could be transferred to The Hague to stand trial.</p>
<p>Ongwen’s <a href="https://www.icc-cpi.int/news/ongwen-case-icc-appeals-chamber-confirms-conviction-and-sentencing-decisions">appeal</a> focused on the argument that the trial chamber committed errors in reasoning when considering his defence.
Duress has several elements, but the chamber focused on one alone: a threat of death or serious body harm to the person on an imminent or continuing basis. </p>
<p>The court did not accept Ongwen’s argument that he had lived in a state of fear. Although the judges acknowledged that the threat of death or serious harm could extend beyond an immediate situation, the judgement stated that it would need to occur “reasonably soon”. </p>
<p>Witnesses testified that Ongwen was a “self-confident commander” who had disobeyed orders on a number of occasions. The appeals chamber concluded, as the trial chamber had done, that the weight of evidence in favour of his willing participation was too great to engage the defence of duress. </p>
<h2>Mitigating punishment</h2>
<p>A <a href="https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2022_07151.PDF">partly dissenting opinion</a> by Judge Luz del Carmen Ibáñez Carranza, however, suggested that Ongwen’s experience as a child soldier ought to have been considered in mitigation of punishment. </p>
<p>As a minority dissent, this had no effect on Ongwen’s sentence. But Ibáñez Carranza made a number of compelling points, including the idea that Ongwen’s background contributed to the situation of duress, and should therefore have an impact on his sentence.</p>
<p>The court’s <a href="https://www.icc-cpi.int/sites/default/files/RulesProcedureEvidenceEng.pdf">rules of procedure and evidence</a> note that duress could be considered in mitigation of punishment. But where there isn’t enough evidence to acquit the accused, the Rome Statute contains no reference to defences which might partially exonerate someone. Partial defences are often used at the domestic level, such as <a href="https://crime.scot/provocation/#:%7E:text=Provocation%20is%20sometimes%20described%20as,not%20guilty%2Fnot%20proven">provocation in Scots law</a>. They allow for the court to reduce the sentence imposed on the convicted person, on the grounds of lesser culpability.</p>
<p>A partial defence could, in theory, reduce the sentence of the accused to demonstrate lesser guilt in circumstances like Ongwen’s. If included explicitly, it could have provided a clearer path for Ongwen and a more rational approach to his defence, beyond an attempt to justify his conduct.</p><img src="https://counter.theconversation.com/content/195878/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clare Frances Moran does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Dominic Ongwen was the first person to use the defence of duress at the International Criminal Court.Clare Frances Moran, Lecturer in Law, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1788362022-03-15T12:16:05Z2022-03-15T12:16:05ZPutin puts international justice on trial – betting that the age of impunity will continue<figure><img src="https://images.theconversation.com/files/451997/original/file-20220314-101106-1r6jxz0.jpg?ixlib=rb-1.1.0&rect=7%2C67%2C4985%2C3255&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A pregnant woman is carried away from a shelled maternity hospital. She later died.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RussiaUkraineWarMaternityHospital/0c824c429f0f4bfbb1c5cea372219a22/photo?Query=maternity%20ukraine&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=136&currentItemNo=5">AP Photo/Evgeniy Maloletka, File</a></span></figcaption></figure><p>Images of pregnant women <a href="https://apnews.com/article/russia-ukraine-kyiv-europe-2bed71c00916d44ea951c5809b446db3">fleeing a bombed maternity ward</a> in Mariupol, Ukraine, raised again the question of how far the Russian military will be willing to go to conquer the country – and <a href="https://www.aljazeera.com/features/2022/3/10/is-russia-committing-war-crimes-by-bombing-hospitals-in-ukraine">whether war crimes are being committed</a>.</p>
<p>In just over two weeks of the invasion, <a href="https://extranet.who.int/ssa/LeftMenu/Index.aspx?utm_source=Stopping%20attacks%20on%20health%20care%20QandA&utm_medium=link&utm_campaign=Link_who">the World Health Organization has verified</a> 39 attacks by Russians on health care facilities. Ukraine <a href="https://www.theguardian.com/us-news/2022/mar/11/first-thing-russian-forces-have-killed-more-civilians-than-soldiers?utm_term=622b4edc7d657dbab80fe20b1e5cd689&utm_campaign=GuardianTodayUS&utm_source=esp&utm_medium=Email&CMP=GTUS_email">claims more civilians</a> than Ukrainian soldiers have already been killed. </p>
<p><a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">International humanitarian law</a>, constituting agreements between countries on the laws of conduct in war, requires militaries to avoid the deliberate targeting of civilians and the use of weapons like cluster munitions that are indiscriminate – in other words, have a high chance of affecting civilians. </p>
<p>It also calls on warring nations to prevent extensive damage to civilian infrastructure, such as schools, residential buildings and hospitals. Simply stated, under these criteria, <a href="https://theconversation.com/the-icc-is-investigating-war-crimes-in-ukraine-could-putin-be-indicted-178005">war crimes</a> take place when there is excessive destruction, suffering and civilian casualties. Rape, torture, forced displacement and other actions may also constitute war crimes.</p>
<p>There are other international crimes, including genocide and crimes against humanity. The latter consists of similar acts like rape and murder <a href="https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml">undertaken as part of widespread or systematic attack</a> directed against a civilian population.</p>
<p>As a <a href="https://udayton.edu/directory/artssciences/hrc/inglis-shelley.php">scholar of human rights and the law</a>, I believe there is clear evidence that Russia has already engaged in violations of international law, including war crimes. Although the potential for holding Russian commanders, and even President Vladimir Putin, accountable and punishing them for international crimes is more likely than in the past, the path is likely long and difficult. Moreover, it is unknown what effect, if any, the specter of prosecution will have on the course of the war.</p>
<p>That’s because international justice has been unable to either prevent or prosecute many perpetrators of war crimes in the past decade.</p>
<h2>History repeating</h2>
<p>International law experts point to <a href="https://theweek.com/russo-ukrainian-war/1010764/putins-brutal-record-in-chechnya-and-syria-is-ominous-for-ukraine">the earlier ravages of Russian military actions in both Chechnya and Syria</a> as an indicator of the tactics Putin is willing to use in the invasion of Ukraine. </p>
<p>Russia fought two wars against the breakaway republic of Chechnya in the years following the fall of the Soviet Union. The second – in which Putin cut his teeth as a wartime leader – was seen as particularly brutal.</p>
<p>During that 1999-2000 conflict, advocacy group <a href="https://www.hrw.org/legacy/press/2000/04/chech0421.htm">Human Rights Watch collected evidence</a> that Russia <a href="https://www.hrw.org/news/2000/02/29/war-crimes-chechnya-and-response-west#">carpet-bombed the capital Grozny and other towns</a>, causing heavy civilian casualties – estimates run into <a href="https://en-academic.com/dic.nsf/enwiki/5415049">the tens of thousands killed</a> – and leaving much of the capital destroyed. </p>
<figure class="align-center ">
<img alt="A woman dragging a cart walks away from the edifice of buildings destroyed by missiles." src="https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/452002/original/file-20220314-26-kj93iu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The city of Grozny was destroyed by Russian shells.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-combination-of-photos-created-on-july-29-shows-a-news-photo/1158372463?adppopup=true">Alexander Nemenov/AFP via Getty Images)</a></span>
</figcaption>
</figure>
<p>There is also compelling evidence that war crimes and crimes against humanity were committed during Russia’s occupation of <a href="https://www.icc-cpi.int/Pages/item.aspx?name=20220310-prosecutor-statement-georgia">South Ossetia in Georgia in 2008</a> and in relation to its annexation of <a href="https://www.icc-cpi.int/Pages/item.aspx?name=201211-otp-statement-ukraine">Crimea and engagement in eastern Donbas region</a> in Ukraine in 2014.</p>
<p>In 2015, Russia participated in Syria’s civil war on the side of President Bashar al-Assad by providing Russian air support to Syria’s army. According to <a href="https://www.hrw.org/news/2016/12/01/russia/syria-war-crimes-month-bombing-aleppo">Human Rights Watch</a>, the aerial bombardment of Aleppo supported by the Russians in 2016 was “recklessly indiscriminate, deliberately targeted at least one medical facility, and included the use of indiscriminate weapons such as cluster munitions and incendiary weapons.” </p>
<p>The <a href="https://www.theguardian.com/world/2020/mar/02/russia-committed-war-crimes-in-syria-finds-un-report">United Nations concluded</a> that the Russian air force was <a href="https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=25638&LangID=E">responsible for war crimes in the Syrian province of Idlib in 2019</a>, having bombed indiscriminately a major marketplace and a displaced persons camp, killing and injuring scores of men, women and children. Russian denied any culpability. And no charges against Putin or Russian military commanders have ever been formally pursued internationally for alleged crimes in Chechnya or Syria. </p>
<p>The <a href="https://www.cnn.com/2022/03/11/politics/joe-biden-warning-chemical-weapons/index.html">United States recently raised</a> the prospect of <a href="https://www.armscontrol.org/factsheets/Timeline-of-Syrian-Chemical-Weapons-Activity">Russia’s deploying prohibited chemical weapons</a> in Ukraine. If it does so, it will be following the lead of Putin ally Assad, whose government <a href="https://www.armscontrol.org/factsheets/Timeline-of-Syrian-Chemical-Weapons-Activity">is known for its use of prohibited chemical weapons</a> against civilians in Syria.</p>
<p>Either way, <a href="https://www.cnbc.com/2022/03/09/russian-ukraine-war-will-get-worse-before-it-gets-better-army-secretary-christine-wormuth-says.html">military experts</a> expect Russia’s tactics in Ukraine to only intensify in its brutality and disregard for the laws of war.</p>
<h2>In search of accountability</h2>
<p><a href="https://opiniojuris.org/2022/02/25/more-than-rhetoric-international-criminal-justice-crime-semantics-and-the-role-of-the-icc-in-the-ukraine-conflict/">Many scholars</a> pin their hopes for accountability on <a href="https://www.icc-cpi.int/">the International Criminal Court</a>, which was established under the Rome Statute in 1998 with 123 states parties. <a href="https://www.cfr.org/backgrounder/role-international-criminal-court">The aim of the court</a> is to prosecute those responsible for genocide, crimes against humanity, war crimes and aggression. </p>
<p>Although neither Russia nor Ukraine is a party to the Rome Statute, the <a href="https://www.aljazeera.com/news/2022/3/7/is-putin-likely-to-face-the-icc-over-russias-actions-in-ukraine">ICC has initiated an investigation</a> into alleged crimes based on <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1146">a special declaration by Ukraine</a>. This gives the ICC legal authority to investigate and prosecute alleged crimes committed in Ukraine since 2014. </p>
<p>But while this early action means that evidence might be collected in real time and speed up the usually slow process of international justice, <a href="https://www.reuters.com/world/icc-faces-myriad-challenges-prosecute-war-crimes-ukraine-2022-03-04/">there are still substantial problems in prosecuting these alleged crimes</a>. </p>
<p>The standards set for proving massive and complex international crimes are more daunting than for domestic crimes. It is even harder to <a href="https://theconversation.com/civilians-are-being-killed-in-ukraine-so-why-is-investigating-war-crimes-so-difficult-178155">prove command responsibility by a head of state</a>, such as Putin, particularly when there is no cooperation between the ICC and the country of the accused. <a href="https://www.cambridge.org/core/books/prosecuting-heads-of-state/F6143E3825D0C7EACA922A0E9BF1C9A5">Successful cases are few</a> and have taken place only after a leader’s fall from power and only if the court has cooperation with the country. That’s how Slobodan Milosevic of Serbia was prosecuted by the <a href="https://www.icty.org/">International Criminal Tribunal for the former Yugoslavia</a>. Similarly, former President Charles Taylor of Liberia was prosecuted by the Special Court for Sierra Leone. </p>
<p>Other options for criminal trials <a href="https://slate.com/news-and-politics/2022/03/russia-war-crimes-putin-prosecute.html">exist outside the ICC but also face major obstacles</a>. Advocates have harnessed <a href="https://lieber.westpoint.edu/water-finds-way-universal-jurisdiction-justice-syria/">the concept of universal jurisdiction</a> – inspired by <a href="https://www.hrw.org/legacy/campaigns/chile98/index.htm">the efforts of Spain to bring former dictator Augusto Pinochet of Chile</a> to justice – to bring perpetrators of war crimes in Syria to trial in European courts. </p>
<p><a href="http://opiniojuris.org/2022/03/08/de-bunking-the-role-of-international-law-in-the-ukrainian-conflict/">Legal experts are also</a> looking at the prosecution of Putin and Russian leadership directly for <a href="https://crimeofaggression.info/role-of-the-icc/definition-of-the-crime-of-aggression/">the crime of aggression</a> in regards to Ukraine. </p>
<p>For this crime, the ICC does not have legal authority to prosecute Putin without a U.N. Security Council referral. Given that Russia has a seat on the Security Council, where it wields a veto, that won’t happen. Options include establishing a special tribunal by Ukraine <a href="https://www.justsecurity.org/80395/united-nations-response-options-to-russias-aggression-opportunities-and-rabbit-holes/">with U.N. General Assembly endorsement</a> or other international support. </p>
<p>But the ICC and special courts are “made from scratch” institutions, with limited capacity and without a police force. Practically, getting Putin or other Russian leaders into any court is an issue. For example, the ICC still struggles <a href="https://www.icc-cpi.int/darfur/albashir">to capture former Sudan President Omar al-Bashir, accused of genocide and other crimes in Darfur</a>, despite issuing arrest warrants for him in 2009 and 2010. </p>
<h2>Age of impunity</h2>
<p>Advocates point out <a href="https://www.foreignaffairs.com/articles/united-states/2021-05-13/age-impunity">that impunity</a> – the ability to escape responsibility for violations of international law – has been on the rise for many years, along with authoritarianism.</p>
<p>That means the initiation of criminal investigations might have little impact on the calculations of Putin, senior Russian leadership or commanders and soldiers on the ground in Ukraine. Some <a href="https://www.ipinst.org/wp-content/uploads/2015/03/Simmons_Paper.pdf">international law experts argue</a> that even where actual prosecution and punishment might not be immediate, actors who care about their legitimacy domestically or internationally are more likely to be deterred from committing more crimes by potential prosecutions. However, there are no <a href="https://internationallaw.blog/2017/04/06/the-approach-to-deterrence-in-the-practice-of-the-international-criminal-court/">firm conclusions</a> about the preventive or deterrent effect of international justice. </p>
<p>[<em>Over 150,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-150ksignup">Sign up today</a>.]</p>
<p>The actions of Russia in Ukraine <a href="https://www.theguardian.com/world/2022/mar/14/vladimir-putin-war-crimes-icc-sajid-javid-hague">might spur investigations at an unprecedented</a> pace. And the ICC can issue <a href="https://iccforum.com/rome-statute#Article58">arrest warrants in order to prevent the further commission of crimes</a>. Such warrants would affect the accused’s ability to travel and officially represent the country.</p>
<p>When, or if, the formal label of accused “war criminal” gets attached to specific Russian names, it is possible that the prospect of accountability will become a more significant factor in the decision-making of those responsible for the ruthless war in Ukraine. But it will still be too late for the many victims already being identified.</p><img src="https://counter.theconversation.com/content/178836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shelley Inglis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Vladimir Putin has a history of flattening cities in time of conflict. But alleged war crimes in Chechnya and Syria never resulted in charges, let alone prosecutions. Will Ukraine be any different?Shelley Inglis, Executive Director, University of Dayton Human Rights Center, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1781552022-03-02T01:04:23Z2022-03-02T01:04:23ZCivilians are being killed in Ukraine. So, why is investigating war crimes so difficult?<figure><img src="https://images.theconversation.com/files/449110/original/file-20220301-17-1qs70u9.jpg?ixlib=rb-1.1.0&rect=260%2C17%2C5712%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Oleksandr Ratushniak/AP</span></span></figcaption></figure><p>The prosecutor of the International Criminal Court, Karim Khan, is <a href="https://www.icc-cpi.int/Pages/item.aspx?name=20220228-prosecutor-statement-ukraine">opening an investigation</a> into whether war crimes may have been committed in Ukraine. He is urgently seeking to preserve evidence as the fighting rages on.</p>
<p>War crimes are serious violations of <a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">international humanitarian law</a>, which seeks to regulate the conduct of war and the treatment of civilians and prisoners during war.</p>
<p>As Russian troops have reached major cities, there have been <a href="https://www.abc.net.au/news/2022-02-27/russia-says-it-s-not-hitting-civilian-targets-but-these-civilian/100865262">increasing reports</a> of strikes on <a href="https://www.theguardian.com/world/2022/feb/28/ukraine-several-killed-by-russian-rocket-strikes-in-civilian-areas-of-kharkiv">civilian objects</a>, such as apartment buildings, schools, kindergartens, hospitals, and oil and electricity facilities. </p>
<p>With the fighting now moving deeper into urban areas – and Russian forces becoming frustrated by Ukrainian resistance – the harm to civilians could become much greater. </p>
<p>Ukraine is not a party to the Rome Statute of the ICC, but it has twice accepted the court’s jurisdiction over any international crimes committed in its territory. This could include offences committed by pro-Russian separatists or Russian or Ukrainian military forces. </p>
<p>It does not matter that Russia is not a member of the court and has not accepted its jurisdiction. But it does mean Russia, like the US, is very unlikely to cooperate with the court.</p>
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<h2>What is a war crime?</h2>
<p>In considering whether war crimes have been committed, the devil is in the legal detail. This is why forensic criminal investigations are so important to uncover the truth and cut through propaganda or the understandable emotion involved in conflicts where civilians are hurt. </p>
<p>International humanitarian law does not absolutely prohibit harm to civilians or their property, and tolerates some collateral damage to civilians.</p>
<p>However, the law is unambiguous when it comes to <em>deliberate</em> attacks on civilians or civilian objects. These are war crimes, unless a civilian object is also being used for military purposes and thus becomes a military target.</p>
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Read more:
<a href="https://theconversation.com/is-international-law-powerless-against-russian-aggression-in-ukraine-no-but-its-complicated-177905">Is international law powerless against Russian aggression in Ukraine? No, but it's complicated</a>
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<p><a href="https://guide-humanitarian-law.org/content/article/3/attacks/">Disproportionate attacks</a> are also war crimes. These are attacks that cause excessive civilian casualties relative to the military advantage of attacking a military target. So, for instance, this could include a missile strike on an apartment building that Russian forces knew would cause significant civilian casualties for little military gain.</p>
<p>International law also prohibits indiscriminate attacks. These could include using certain weapons against military targets in dense urban areas, such as artillery, cluster munitions or <a href="https://www.theguardian.com/world/2022/mar/01/what-are-thermobaric-weapons-and-how-do-they-work">thermobaric “vacuum” bombs</a>, whose wide effects also risk hitting civilians. </p>
<p>Russian troops have already been <a href="https://www.reuters.com/world/europe/ukraines-ambassador-us-says-russia-used-vacuum-bomb-monday-2022-02-28/">accused</a> of using cluster munitions and vacuum bombs in civilian areas in Ukraine. Both were also used by Russian forces in the devastating Chechen wars in the 1990s.</p>
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<p>Other war crimes include killing detainees, torture, hostage taking, illegal detention and wanton property destruction. </p>
<p>It is also a war crime to kill or injure anyone when dressed in the military uniform of the other side (such as possible Russian saboteurs wearing Ukrainian uniforms), or when dressed as a civilian without any military insignia (this could potentially include Ukrainian civilians who throw Molotov cocktails).</p>
<h2>Crimes likely to have occurred</h2>
<p>This is not the first time the ICC has looked into alleged crimes in Ukraine. A <a href="https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf">preliminary examination</a> by Khan’s predecessor, Fatou Bensouda, in 2020 found “a reasonable basis to believe” war crimes and crimes against humanity had been committed in eastern Ukraine and Crimea since 2014.</p>
<p>Bensouda did not indicate who was responsible, though much of the conduct is likely to have been committed by Russian forces (in Crimea) and pro-Russian separatists (in eastern Ukraine).</p>
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<p>The prosecutor’s office <a href="https://www.usnews.com/news/world/articles/2022-02-28/icc-prosecutor-to-open-probe-into-war-crimes-in-ukraine">had not yet sought permission</a> from judges to open a full-scale investigation. But Khan has now confirmed those findings and wants to launch such a formal investigation, expanded to include the current conflict.</p>
<p>In Crimea, the allegations include everything from wilful killing and torture to the conscription of Ukrainian civilians into the Russian army and forced transfer of civilian prisoners from occupied territory.</p>
<p>In eastern Ukraine, the alleged war crimes include murder, torture, rape and launching attacks causing disproportionate civilian casualties.</p>
<p>Khan is satisfied these alleged crimes are grave enough to justify ICC prosecution, and that Ukraine and Russia are either unable or unwilling to investigate themselves. Ukraine cannot take suspects into custody in areas it does not control, while Russia is uninterested in prosecuting anyone. </p>
<p>However, the ICC does not have jurisdiction over the international crime of aggression – that is, to prosecute Russia’s unlawful attack on Ukraine. </p>
<p>Ukraine has made a <a href="https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf">claim</a> with the International Court of Justice that Russia is invading on the pretext of stopping genocide by Ukraine, but this is a speculative gambit. And the ICJ does not have jurisdiction to directly hear any claim that Russia is committing aggression.</p>
<h2>Challenges make prosecutions unlikely</h2>
<p>The ICC investigation sends an important signal to Russia that impunity for international crimes will not be tolerated. It contrasts with the court’s position on Afghanistan, where the investigation into alleged war crimes by the US and other foreign forces was controversially “<a href="https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan">deprioritised</a>” last year.</p>
<p>But significant hurdles still remain. Once a formal investigation is launched, it will take many years to progress. This is due to the difficulty of obtaining and preserving evidence (both physical and digital) in the middle of live combat and a rife propaganda war. Russia will also be uncooperative. </p>
<p>Even then, realistically, it is unlikely many prosecutions will happen – if any at all. For one, establishing which Russian military or political leaders are responsible for specific crimes will be complex and difficult. Then, arresting them in Russian-occupied territory, or obtaining their extradition from Russia, will be virtually impossible. The ICC has only convicted <a href="https://www.icc-cpi.int/about">10 people in two decades</a>, despite the prevalence of international crimes in many conflicts. </p>
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Read more:
<a href="https://theconversation.com/judge-jury-and-executioner-why-holding-militaries-to-account-for-alleged-war-crimes-is-so-hard-podcast-164117">'Judge, jury and executioner': why holding militaries to account for alleged war crimes is so hard – podcast</a>
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<p>At most, anyone ultimately indicted may think twice about travelling outside Russia or occupied Ukraine, as they could be arrested in <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx">123 countries</a> that are members of the court.</p>
<p>There is also the possibility Putin’s regime will eventually fall and a new Russian government may be more open to seeking justice for its past. Collecting and preserving evidence is therefore essential for any future accountability efforts.</p>
<p>Having failed to prevent the conflict, the least the international community can do now is better resource the prosecutor’s office to undertake its important investigations, and share relevant evidence and intelligence.</p><img src="https://counter.theconversation.com/content/178155/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Saul is affiliated with Chatham House in London and the International Centre for Counter-terrorism in The Hague.</span></em></p>The International Criminal Court is launching an investigation into possible war crimes in Ukraine. But significant hurdles remain, and it’s uncertain anyone will ever be brought to justice.Ben Saul, Professor of International Law, Sydney Centre for International Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1178102019-05-28T09:04:59Z2019-05-28T09:04:59ZWhy Sudan won’t hand over former president al-Bashir to the International Criminal Court<p>It has been a long fight for justice. Back in July 2008, the prosecutor for the International Criminal Court (ICC) requested an arrest warrant for the then president of Sudan, <a href="https://www.bbc.co.uk/news/world-africa-16010445">Omar al-Bashir</a>, citing his alleged criminal responsibility for crimes against humanity, genocide and war crimes in the Darfur region. Ultimately, two arrest warrants were issued, on <a href="https://www.icc-cpi.int/darfur/albashir/pages/alleged-crimes.aspx">March 4, 2009 and July 12, 2010</a>.</p>
<p>But justice did not swiftly follow. Despite the arrest warrants, al-Bashir won <a href="https://www.bbc.co.uk/news/world-africa-16010445">presidential elections in 2010 and 2015</a> and continued to travel around the region and further afield. In April, following <a href="https://theconversation.com/how-sudans-economic-crisis-had-a-role-in-protests-that-toppled-al-bashir-116405">months of protests</a>, the Sudanese military <a href="https://www.theguardian.com/world/2019/apr/11/sudan-army-ousts-bashir-after-30-years-in-power">toppled the president</a> and announced a military-led transitional council. The former president is now being held in prison in Sudan.</p>
<p>The military-led transitional council has declared that al-Bashir may be tried in Sudan, <a href="https://www.reuters.com/article/us-sudan-politics-bashir/military-council-says-will-not-extradite-bashir-may-try-him-in-sudan-idUSKCN1RO154">but not handed over to the ICC</a>. It is unclear whether a return to civil rule will result in al-Bashir’s transfer to the ICC, but al-Bashir has been charged domestically with <a href="https://www.nytimes.com/2019/05/13/world/africa/al-bashir-charged-sudan.html">killing demonstrators and financial crimes</a>.</p>
<p>Under international law, heads of state such as al-Bashir, enjoy various privileges, including immunity from criminal jurisdiction. This simply means that a serving head of state cannot be brought before a court to answer for their alleged crimes. Indeed, even when they leave office, they continue to enjoy immunity for their official acts during their time in office, a privilege known as <a href="https://www.legislation.gov.uk/ukpga/1978/33%20and%20http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf">“functional immunity”</a>. </p>
<p>On several occasions, the International Court of Justice, arguably the most authoritative court ruling on matters of international law, <a href="https://www.icj-cij.org/files/case-related/136/136-20080604-JUD-01-00-EN.pdf">confirmed</a> that heads of state enjoy “full immunity from criminal jurisdiction and inviolability”. This also appears to <a href="https://www.icj-cij.org/files/case-related/121/121-20020214-JUD-01-00-EN.pdf">protect them</a> “against any act of authority of another state which would hinder him or her in the performance of his or her duties”. </p>
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Read more:
<a href="https://theconversation.com/how-sudans-economic-crisis-had-a-role-in-protests-that-toppled-al-bashir-116405">How Sudan's economic crisis had a role in protests that toppled al-Bashir</a>
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<p>Nevertheless, the Rome Statute of the International Criminal Court (1998) (also known as the Rome Statute (1998)) is an international treaty which enables the ICC to make rulings on <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">cases brought before it</a> regardless of the official capacity of the defendants, including former and serving heads of state. But international law is widely considered to be consent-based, so a state must ratify a treaty in order to be <a href="https://escholarship.org/content/qt04x8x174/qt04x8x174.pdf">bound by its provisions</a>. And Sudan, like many other countries, is not a state party to the Rome Statute, and so should not normally be subject to the ICC’s jurisdiction.</p>
<p>It is not, however, quite as simple as that. United Nations Security Council (UNSC) resolutions are <a href="https://treaties.un.org/doc/publication/ctc/uncharter.pdf">binding under international law</a>. On March 31, 2005, the UNSC issued Security Council Resolution 1593, which referred al-Bashir to the ICC. As a consequence, Sudan was treated as subject to the Rome Statute, despite it not being a <a href="https://www.icc-cpi.int/nr/rdonlyres/85febd1a-29f8-4ec4-9566-48edf55cc587/283244/n0529273.pdf">state party to the treaty</a>.</p>
<h2>The African Union’s response</h2>
<p>The African Union (AU) plays a significant role, too. The AU comprises of 55 member states, Sudan being one of them, and functions similarly to the European Union. As some AU member states are also state parties to the Rome Statute, they have a duty to arrest and <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">surrender al-Bashir to the ICC</a>.</p>
<p>The ICC, however, has a poor reputation on the continent, where it is widely seen as being overly preoccupied with <a href="https://www.monitor.co.ug/Magazines/PeoplePower/ICC-manipulated-suffocate-Africa-justice-systems-British-scholar/689844-5131626-8pwuc5z/">targeting African states</a> while overlooking others. This led to a number of African states refusing to arrest and surrender al-Bashir to the ICC. Indeed, al-Bashir has regularly visited other African states <a href="https://www.news24.com/Africa/News/icc-failure-to-arrest-sudans-president-undermines-court-20171213">without being arrested</a>.</p>
<p>In fact, the ICC has made several rulings finding that Chad, Malawi, Sudan, Djibouti, Uganda and South Africa have failed to comply with its request to <a href="https://www.news24.com/Africa/News/icc-failure-to-arrest-sudans-president-undermines-court-20171213">arrest al-Bashir</a>. The AU even urged its member states <a href="https://au.int/sites/default/files/decisions/9560-assembly_en_1_3_july_2009_auc_thirteenth_ordinary_session_decisions_declarations_message_congratulations_motion_0.pdf">not to comply</a> with the ICC and went so far as to threaten its members with sanctions <a href="https://au.int/sites/default/files/decisions/9649-assembly_au_dec_391_-_415_xviii_e.pdf">if they did so</a>.</p>
<p>Indeed, handing over al-Bashir to the ICC is neither in Sudan’s nor the AU’s interests as their consistent response may eventually result in the establishment of “custom”, which is a recognised source of international law. Consequently, Sudan is almost certainly going to take matters into its own hands and try al-Bashir in its domestic courts. And this precedent may well protect other African heads of states from being targeted by courts overseas in the future.</p>
<h2>How the US has responded</h2>
<p>The chances of al-Bashir being tried by the ICC have also been compromised by the US’s stance. </p>
<p>The US was one of the permanent members in the UNSC that originally referred al-Bashir to the ICC. However, the ICC has also expressed an interest in investigating the US for crimes against humanity and war crimes. The US has responded by threatening the ICC with <a href="https://www.worldpoliticsreview.com/articles/27810/the-international-criminal-court-is-in-danger-of-being-bullied-into-irrelevance">sanctions and cancelling the visas of ICC investigators</a></p>
<p>The US, like Sudan, has not ratified the Rome Statute. Nor will it realistically be referred to the ICC as it is a permanent member in the UNSC and can simply veto any resolution which seeks to subject it to the ICC’s jurisdiction.</p>
<p>Critically, this seems to advance the AU’s narrative. First, because the US’s ability to avoid ICC justice supports the idea that the ICC targets African states in a discriminatory fashion. And second, because the AU can cite the US’s noncompliance with the ICC as justification <a href="https://www.jurist.org/commentary/2019/05/mark-ellis-crisis-with-icc">for its own stance</a>.</p>
<p>Either way, while al-Bashir may well be tried in Sudan, he is unlikely ever to face justice on the international stage. And this may well embolden other leaders who believe that they are above the law.</p><img src="https://counter.theconversation.com/content/117810/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Yousif Mansour Ahmed Abdalla AlZarouni does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The African Union and its member states are creating their own interpretation of immunity which will protect its heads of state from courts abroad.Yousif Mansour Ahmed Abdalla AlZarouni, PhD Candidate, Brunel University LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1007882018-08-06T15:01:18Z2018-08-06T15:01:18ZCan a regional court be a viable alternative to the ICC in Africa?<figure><img src="https://images.theconversation.com/files/230257/original/file-20180801-136661-1ig5qtt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The acquittal of Jean-Pierre Bemba on war crimes charges puts the ICC in even deeper crisis. </span> <span class="attribution"><span class="source">EPA/Michael Kooren</span></span></figcaption></figure><p>The International Criminal Court (ICC) came about after an overwhelming majority of states attending the Rome Conference voted in favour of its adoption <a href="https://www.ajol.info/index.php/ajcr/article/view/160585">20 years ago</a>. The aim was to combat the grave crimes of genocide, war crimes and crimes against humanity that threaten peace and security in the world. </p>
<p>The court seeks to put an end to impunity by ensuring that these serious crimes don’t go unpunished, and ensure their effective prosecution through international cooperation. </p>
<p>The ICC was started with the overwhelming support of African states. But this has since waned. African countries have become increasingly vocal in their displeasure on a number of issues, leading to the <a href="https://www.bbc.com/news/world-africa-38826073">2017 AU decision</a> calling on African states to leave the ICC. This followed Burundi and South Africa announcing their withdrawal. The Gambia did too, but then reversed the decision.</p>
<p>Historically, the relationship between African states and the ICC can be tracked along governance lines. Those states with poor governance and rule of law were most opposed to international jurisdiction, in fear of personal criminal liability by their leaders. Countries with a history of good governance and rule of law, on the other hand, tended to support the ICC more. </p>
<p>But this neat categorisation hasn’t always worked, with South Africa as a notable example.</p>
<p>The unhappiness with the ICC can broadly be placed in three categories: The <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ncjint43&div=21&id=&page=">justice versus peace debate</a>, <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ncjint43&div=21&id=&page=">sovereignty</a>, and Africa versus <a href="https://www.dailymaverick.co.za/opinionista/2013-10-15-the-african-case-against-the-icc/">Western imperialism</a>. </p>
<p>These arguments have serious repercussions for the future legitimacy of the ICC. With Africa being the largest regional grouping, it has been convincingly argued that </p>
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<p>the impact of the ICC on global justice will be <a href="http://www.iccnow.org/documents/IJR_ICC_Regional_Consultation_Report_Final_2011.pdf">determined in Africa</a>. </p>
</blockquote>
<p>I nevertheless believe there’s a case to be made for Africa’s withdrawal from the ICC. This is because there are alternatives.</p>
<p>One of them is the <a href="http://www.osisa.org/openspace/regional/african-court-worth-wait">proposed merger</a> between the current African Court on Human and <a href="http://www.african-court.org/en/">People’s Rights</a>, and the African Court of Justice, established by the <a href="https://au.int/sites/default/files/pages/32020-file-constitutiveact_en.pdf">AU Constitutive Act</a>. This would lead to the creation of the African Court of Justice and <a href="http://www.osisa.org/openspace/regional/african-court-worth-wait">Human Rights</a>. </p>
<p>The idea of an African court with international criminal jurisdiction has been debated since <a href="http://www.osisa.org/openspace/regional/african-court-worth-wait">2009</a>, but it’s never been put into operation. With the pervasive anti-ICC sentiment it’s now the most advantageous time for the AU to ratify the protocol and implement the merger. </p>
<p>What I envisage is that the ICC would continue to operate, albeit with fewer signatories. The new African court could work side-by-side with it, complementing its work.</p>
<h2>New court</h2>
<p>The merged court would have three main mandates - addressing general affairs between states, human and peoples’ rights, and international crimes. </p>
<p>The current African court doesn’t have international <a href="https://www.ajol.info/index.php/ajcr/article/view/160585">criminal jurisdiction</a>. But the <a href="https://au.int/sites/default/files/treaties/7804-treaty-0045_-_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e-compressed.pdf">Malabo Protocol</a>, which was adopted by the AU in June 2014, extends the African Court on Justice and Human Rights jurisdiction to include 14 international and transnational crimes. These include genocide, war crimes and crimes against humanity. </p>
<p>The Malabo Protocol goes further than any other contemporary treaty, including the Treaty of Rome. </p>
<p>It provides the African Court on Justice and Human Rights wider jurisdiction than the ICC in addressing the serious challenges Africa faces with transnational crimes. It provides the means of interpreting and applying not only the AU Constitutive Act, but “all other Treaties” adopted within the framework of the AU. Other international courts are limited to a single treaty. </p>
<p>The biggest challenge of the Malabo Protocol is arguably <a href="https://au.int/sites/default/files/treaties/7804-treaty-0045_-_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e-compressed.pdf">Article 46A bis</a> which gives immunity to serving heads of state, or anybody acting in such capacity. This may be in line with <a href="https://academic.oup.com/ejil/article/21/4/815/418198">international custom</a> but clashes directly with <a href="https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf">Article 27</a> of the Rome Statute, which does not exempt heads of state from prosecution. </p>
<p>There is a way round this limitation: it is for the ICC to complement the merged African court. The ICC could exercise its jurisdiction over serving heads of state where African states were unable to exercise their jurisdiction because of the immunity granted by the Malabo Protocol.</p>
<h2>Case for an African alternative</h2>
<p>Now is the time for African states to give serious consideration to the ratification and implementation of the Malabo Protocol. </p>
<p>The ICC is facing a legitimacy crisis. The court’s statistics bear witness to the fact that nine out of ten cases before it are <a href="https://www.forbes.com/sites/ewelinaochab/2017/07/16/a-second-look-at-the-international-criminal-court/#a4792582c7ea">African</a>. </p>
<p>The ICC is seemingly unable to get past the veto powers of the UN Security Council, where three of the five most powerful countries are not even parties to the Rome Statute. This is a clear predictor that the possibility of any prosecutions of non-African heads of state is little to none.</p>
<p>The ICC received a further blow to its stature recently, when one of its few successful prosecutions, that of Congolese military commander, Jean-Pierre Bemba, for crimes against humanity and war crimes, was overturned by the ICC Appeal Chamber in <a href="https://www.icc-cpi.int/CourtRecords/CR2018_02984.PDF">June</a>. </p>
<p>In contrast, the Extraordinary African Chambers in Senegal successfully prosecuted deposed Chadian president Hisséne <a href="https://www.hrw.org/tag/hissene-habre">Habré</a>. Although the victims waited 25 years for <a href="https://www.ajol.info/index.php/ajcr/article/view/160585">justice</a>, this case was <a href="http://www.internationalcrimesdatabase.org/Case/220">confirmed on appeal</a>, showing that Africa can indeed successfully prosecute the most serious of international crimes. </p>
<p>This strengthens the argument for a regional court. The challenges faced by the ICC in Africa resemble the proverbial Gordian knot. Allowing a regional alternative may just prove to be the undoing of the knot.</p><img src="https://counter.theconversation.com/content/100788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Nel is affiliated with the Security Institute for Governance and Leadership in Africa (SIGLA) of Stellenbosch University. </span></em></p>An African court with international criminal jurisdiction which has been debated but never been put into operation could be an option if Africa withdraws from the ICC.Michelle Nel, Lecturer in Criminal and Military law and the Law of Armed Conflict at the Faculty of Military Science, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/889662017-12-17T10:19:38Z2017-12-17T10:19:38ZA chance for the International Criminal Court to fix sex crimes injustice<figure><img src="https://images.theconversation.com/files/199471/original/file-20171215-17863-1ka35cd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Congolese rebel warlord, Jean-Pierre Bemba.</span> <span class="attribution"><span class="source">Francois Lenoir/Reuters</span></span></figcaption></figure><p>The International Criminal Court (ICC) marks the 20th anniversary of the <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en">Rome Statute</a> that established it, next year. The ICC, with 123 states parties, is the first permanent global tribunal aimed at prosecuting war crimes, crimes against humanity, genocide, and in future the crime of aggression. A significant point of reflection during the anniversary will be its efforts to achieve justice for victims of atrocity crimes, especially through its unique victims framework, <a href="https://www.icc-cpi.int/about/victims">including reparations</a>. </p>
<p>Twenty years ago, the hope was that the Rome Statute’s reparations system would have a transformational effect - dismantling the structures that created violence and conflict in the first place. This reparative framework was envisaged to include attention to the rights for women and victims of sexual and gender based violence. But how far has it gone in achieving this goal?</p>
<p>The Court is close to handing down its reparations decision in the war crimes case of Jean-Pierre Bemba Gombo, former vice-president of the Democratic Republic of Congo. In March 2016, Bemba was <a href="https://www.icc-cpi.int/car/bemba/Documents/bembaEng.pdf">found guilty</a> of crimes against humanity and war crimes, including rape, was sentenced to 18 years imprisonment. The ICC found that events that took place in 2002/3 in the Central African Republic, were as a result of Bemba’s failure to exercise control properly over the militia he commanded.</p>
<p>This is a significant case, because it’s the first to include charges and a conviction for crimes of sexual violence against women and men.</p>
<p>Victims and a strong civil society movement supporting them are hoping that the reparations decision in the Bemba case will set the ICC on a new path toward reparative justice. The decision is expected to be handed down imminently. </p>
<p>Under the Rome Statute, Court ordered reparations are available to victims recognised by the court after the accused is found guilty. In the Bemba case, this involves over 5,000 victims.</p>
<p>Such a shift is needed given the Court’s poor reparations record to date. </p>
<h2>Not a brilliant track record</h2>
<p>The Court’s first reparations case involved the lengthy trial of <a href="https://www.icc-cpi.int/drc/lubanga/Documents/lubangaEng.pdf">Thomas Lubanga Dyilo</a>, from the Democratic Republic of Congo. In March 2012, Lubanga, a leader of the Force patriotique pour la libération du Congo became the first person to be tried and convicted by the ICC. The Court found him responsible for crimes of enlisting, conscripting and using child soldiers and sentenced him to a period of 14 years imprisonment.</p>
<p>As the first case to be finalised, the Lubanga case was the first opportunity to see how the Court’s reparations regime would work in practice, and how it might respond to sexual and gender based violence. Lubanga was not convicted of any sexual or gender based crimes <em>per se</em>. But, evidence emerged during the trial of sexual and gender based violence against girl soldiers.</p>
<p>But, the prosecution failed from the beginning to fully investigate, gather evidence and include charges for crimes against women. This made it difficult for the judges to find against Lubanga for these acts.</p>
<p>The Trial Chamber did attempt to incorporate victims of sexual and gender based violence in the reparations phase. But, in a long drawn out process, after the initial decision and order was handed down in <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-2904">August 2012</a>, it was appealed by the defence and victims’ lawyers. The defence argued that reparations for victims of these acts could not be ordered because Lubanga had not been charged or convicted of sexual and gender based crimes.</p>
<p>Nearly three years later, in March 2015, the Appeals Chamber finally confirmed that although there would be reparations available for the former child soldiers, there would be no specific reparations for sexual and gender based crimes. It was a devastating blow to women who had been child soldiers in Lubanga’s group, who were allegedly raped by their commanders.</p>
<p>Today, the victims are still waiting for the independent <a href="https://www.trustfundforvictims.org/">Trust Fund for Victims</a> to implement reparations – the long wait only serving to compound the injustice. </p>
<h2>What went wrong</h2>
<p>At the start of his case Lubanga was only charged with a narrow range of child soldier war crimes, not sexual violence violations. </p>
<p>Efforts to fix this – by the prosecutor Luis Moreno Ocampo himself – during the trial failed. The consequence was that the verdict and sentencing left a lot to be desired. In March 2012, Lubanga was found guilty on all three counts of enlistment, recruitment and use relating to child soldiers. The <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-2843">majority verdict</a> found that girl soldiers were subjected to violence and rape, but no charges had been made in relation to this. In the sentencing decision handed down on 10 July 2012, the Bench <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-2901">noted</a> that,</p>
<blockquote>
<p>(it) strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence.</p>
</blockquote>
<p>The cascade of injustice then extended to the reparations phase. Because the ICC’s reparations framework links the conviction to the measures of repair, and there were no charges or convictions for sexual and gender based crimes, these fell outside the reach of reparations.</p>
<p>Almost three years after an appeals process began, on March 3 2015, the Appeals Chamber upheld the decision not to award <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-3129">individual reparations</a>. But it left open the possibility of general assistance for victims in future cases where the crimes had been charged appropriately.</p>
<p>On 21 October 2016, the Chamber in the Lubanga case approved the Trust Fund’s plan for symbolic collective reparations for the <a href="https://www.icc-cpi.int/CourtRecords/CR2016_22094.PDF">child soldiers</a>. The symbolic measures aim to promote healing for former child soldiers, for example, in establishing commemoration centres. </p>
<p>Finally, on 15 December 2017 the ICC <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1351">issued a decision</a> relating to Lubanga’s personal liability for the crimes he committed. The judges settled on the figure of $10 million. The catch is that Lubanga claims to be indigent – meaning he has no means to pay these costs. As a result, the Trial Chamber has asked the Board of the Trust Fund for Victims to try and secure funds. Its ability to do so, and the willingness of the DRC Government to participate, are the next tests in this long process.</p>
<h2>Room for improvement</h2>
<p>The Trial Chamber may have overreached in its language when it suggested the ICC could provide “transformational” justice to <a href="https://www.icc-cpi.int/CourtRecords/CR2012_07872.PDF">Lubanga’s victims</a>. In making such a claim, the Court seemed to be suggesting that it could tackle the conditions that provoked the violence in the first place - something that is impossible given the resources and jurisdiction available to the ICC. A more realistic approach would protect victims from serious disappointment.</p>
<p>The Lubanga case demonstrates the Court can do a great deal to improve the gender-just outcomes of its reparations processes. </p>
<p>ICC supporters expect the upcoming Bemba reparations decision will reflect lessons from the Lubanga case. But it is not only the Court that needs to make an effort. As the Director of the Trust Fund for Victims, Motoo Noguchi, noted at the ICC’s assembly at UN headquarters:</p>
<blockquote>
<p>Reparative justice is not free of charge.</p>
</blockquote>
<p>It will require further financial support to help fund the court’s reparations efforts, including earmarking funding for victims of sexual and gender based crimes.</p>
<p><em>A <a href="http://www.tandfonline.com/toc/fjhr20/21/9?nav=tocList">longer version</a> of this article appeared in a special issue on transformational reparations for victims of conflict-related sexual violence in the International Journal for Human Rights.</em></p><img src="https://counter.theconversation.com/content/88966/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Louise Chappell receives funding from the Australian Research Council </span></em></p>Under the Rome Statute, court ordered reparations are available to victims after the accused is found guilty. In the case of Jean-Pierre Bemba Gombo, this involves over 5,000 victims.Louise Chappell, Director of the Australian Human Rights Institute, Professor Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/815002017-07-27T03:00:55Z2017-07-27T03:00:55ZICC ruling on South Africa and al-Bashir: pragmatism wins the day<figure><img src="https://images.theconversation.com/files/179460/original/file-20170724-24759-1a9mq6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sudanese President Omar al-Bashir returned to Khartoum, after evading possible arrest in South Africa in 2015.
</span> <span class="attribution"><span class="source">EPA/Marwan Ali</span></span></figcaption></figure><p>The International Criminal Court (ICC) has finally handed down its highly anticipated judgment on South Africa’s failure to arrest Sudanese President Omar Al-Bashir. In a somewhat surprising decision, the court’s pre-trial chamber ruled that South Africa had failed to comply with its obligations as a signatory to the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a>. But ICC judges stopped short of taking tougher action, choosing not to refer South Africa to either the <a href="https://www.icc-cpi.int/asp">Assembly of State Parties </a> or the United Nations Security Council. </p>
<p>Some <a href="https://justiceinconflict.org/2017/07/20/non-compliance-but-no-referral-the-icc-muddies-the-waters/">have argued</a> that the decision “may do the ICC more harm than good as far as being taken seriously as a legal institution.” </p>
<p>Instead, I will argue here that the ICC made a pragmatic decision, informed by the current fragility of the Court, and by the nexus between politics and international criminal justice. The decision might instead make the Court more functional by reconciling legal idealism and political reality. </p>
<p>First, a brief background to the events leading up to the Court’s decision.</p>
<h2>The case against South Africa</h2>
<p>Al-Bashir is wanted by the ICC on charges of genocide, war crimes and <a href="https://www.icc-cpi.int/darfur/albashir">crimes against humanity</a>, and was in South Africa for the <a href="https://www.au.int/web/en/summit/25">2015 African Union Summit</a>.</p>
<p>As a signatory to the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a> that governs the jurisdiction and functioning of the Court, South Africa was obliged to arrest al-Bashir when he was in the country, and to extradite him to The Hague to face trial.</p>
<p>But the government refused to arrest him. It cited the impact this might have on ongoing peace negotiations in Sudan and the decision to grant immunity to all delegates attending the summit.</p>
<p>South Africa’s Supreme Court of Appeal subsequently ruled that the failure to arrest al-Bashir was <a href="https://www.theguardian.com/world/2016/mar/16/south-african-court-rules-failure-to-detain-omar-al-bashir-was-disgraceful">unlawful</a>. The government remained unrepentant.</p>
<p>In addition, months after the events surrounding the summit, the South African government announced its intention to <a href="https://theconversation.com/withdrawal-from-the-icc-a-sad-day-for-south-africa-and-africa-67489">withdraw from the ICC</a>. The decision was subsequently ruled <a href="https://www.nytimes.com/2017/03/08/world/africa/south-africa-icc-withdrawal.html">unconstitutional</a> by the High Court in Pretoria.</p>
<h2>Significance of ruling</h2>
<p>The ICC’s ruling was significant for several reasons. </p>
<p>First, it was made only a short time after what appeared to be the beginning of <a href="https://www.theguardian.com/world/2016/nov/18/african-exodus-international-criminal-court-kofi-annan">mass exodus</a> by African countries from the ICC.</p>
<p>In late 2016, <a href="http://www.bbc.com/news/world-africa-37771592">The Gambia</a> and <a href="http://www.aljazeera.com/news/2016/10/burundi-moves-quit-international-criminal-court-161012132153065.html">Burundi</a> joined South Africa in announcing their intention to leave. In fact, the feared African exodus hasn’t materialised. <a href="http://www.news24.com/Africa/News/un-gambia-formally-reverses-withdrawal-from-icc-20170214">The Gambia</a> and <a href="https://www.nytimes.com/2017/03/08/world/africa/south-africa-icc-withdrawal.html">South Africa</a> have since reversed their decisions. But the Court’s decision reflects its often fraught relationship with African countries – some of which are well-founded, <a href="https://justiceinconflict.org/2016/11/01/what-the-icc-can-do-to-improve-its-relationship-with-african-states/">some less so</a>. </p>
<p>The Court’s ongoing inability to get Al-Bashir to The Hauge for trial reflects its greatest limitation: its reliance on the cooperation of states to get anything done. Given this, it would have been perfectly reasonable and legitimate to refer South Africa to the Assembly of State Parties or the UN Security Council.</p>
<p>But the ongoing legitimacy of the Court depends not only on the number of signatories to the Rome Statute – <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx">currently 124</a> – but also their geographical spread. </p>
<p>The support of African countries is imperative to the Court’s continuing legitimacy. Its decision is therefore partly informed by the need to keep African countries onside.</p>
<p>Second, the Court is entering a new phase. It’s either considering, or is about to open three new cases involving Afghanistan, Ukraine and Palestine. Each case shares a common characteristic: the investigations are likely to involve the armed service personnel of countries that not only refuse to join the Court, but are also openly hostile to the idea that the Court has any jurisdiction over their soldiers. The countries are the US, Russia and Israel. </p>
<p>The potential situation in Palestine is especially <a href="https://theconversation.com/what-admitting-palestine-to-the-international-criminal-court-means-36140">fraught</a>. I’ve <a href="https://theconversation.com/what-admitting-palestine-to-the-international-criminal-court-means-36140">argued before</a> that Israeli and US defence force personnel should be held to account at the ICC for their actions. Similarly, I’ve also <a href="https://theconversation.com/international-criminal-court-is-not-just-for-hunting-africans-18072">argued</a> that it’s important for the future of the Court that it open investigations outside of Africa.</p>
<p>For the Court to act without acknowledging the political sensitivities of these new situations would be simply naive. The Court’s decision on South Africa suggests it’s acutely aware of these political realities.</p>
<p>Third, arguably the most significant aspect of the Pre-Trial Chamber’s decision was the comments concerning the <a href="https://www.icc-cpi.int/CourtRecords/CR2017_04402.PDF">Security Council</a>:</p>
<blockquote>
<p>The Chamber observes that States Parties have been referred to both the Assembly of States Parties and the United Nations Security Council in six instances in relation to failures to arrest and surrender Omar Al-Bashir… However […] meetings of the Security Council of the United Nations […] have not resulted in measures against States Parties that have failed to comply with their obligations to cooperate with the Court.</p>
</blockquote>
<p>This is a damning indictment of the Security Council. Despite the decision that South Africa had not fulfilled its obligations as a signatory in failing to arrest al-Bashir, the ICC has deemed the punishing body – the Security Council – not fit for purpose. What this means for future <a href="https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-302">Article 87 rulings</a> is unclear. </p>
<h2>Political realism</h2>
<p>The Chamber’s ruling provides further evidence that the Court’s ability to function in the manner envisioned by the architects of the Rome Statute appears to be increasingly at the whim of international politics.</p>
<p>None of this is to suggest that the Court’s activities be informed purely by realpolitik. Indeed, one of the greatest successes of the Court in its 15 years of operation is the degree to which it has contributed to undermining traditional understandings of <a href="http://www.thepolicyspace.com.au/2015/15/54-why-the-international-criminal-court-is-going-ok">“politics as power”</a>. </p>
<p>But the Court is operating in a very different political environment to the “golden age” of international criminal justice in which it was <a href="http://legal.un.org/icc/general/overview.htm">established</a>. Some pragmatism might serve it well.</p><img src="https://counter.theconversation.com/content/81500/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matt Killingsworth does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ICC has been criticised for not acting against South Africa after it failed to arrest Sudan’s president in 2015. But, the court actually acted sensibly given the challenges it faces.Matt Killingsworth, Senior Lecturer in International Relations, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674702016-10-25T16:01:42Z2016-10-25T16:01:42ZWhy South Africa’s withdrawal is not a death-knell for the ICC<figure><img src="https://images.theconversation.com/files/142926/original/image-20161024-28376-o7cdma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's planned withdrawal from the ICC is considered a detraction from Nelson Mandela's "inspiring legacy". </span> <span class="attribution"><span class="source">Jim Bourg/Reuters</span></span></figcaption></figure><p>This South African government has announced its intention to withdraw from the International Criminal Court <a href="https://www.theguardian.com/world/2016/oct/21/south-africa-to-quit-international-criminal-court-document-shows">(ICC)</a>. The announcement comes just over a week after Burundi said it would also start the process of <a href="http://af.reuters.com/article/commoditiesNews/idAFL4N1CI3RX">withdrawing</a> from the court. </p>
<p>The establishment of the court in 2002 was greeted enthusiastically by many <a href="http://www.ijr.org.za/publications/pdfs/IJR%20Policy%20Brief%20No%208%20Tim%20Miruthi.pdf">African countries</a>. But in the intervening 14 years, with most of the ICC’s investigations focusing on <a href="https://www.icc-cpi.int/pages/situations.aspx">African countries</a>, that initial enthusiasm has waned in <a href="https://justicehub.org/article/courtside-justice-icc-and-africa-part-1">many quarters</a>.</p>
<p>A belief has developed among a vocal group within the African Union (AU) that the ICC has disproportionately focused on <a href="https://theconversation.com/international-criminal-court-is-not-just-for-hunting-africans-18072">Africa</a>. The detractors say the court ignores similar, if not worse, situations in other parts of the world. Some accuse it of <a href="http://www.nationalturk.com/en/african-union-cries-foul-international-criminal-court-icc-hunts-african-race-africa-news-38218/">“hunting Africans”</a>.</p>
<p>South Africa’s withdrawal, in particular, raises new questions about the court’s ongoing relevance. It comes at a time when the ICC has made important advances by opening investigations outside of Africa and completing cases that further define what is not permissible during war. </p>
<h2>South Africa and the ICC</h2>
<p>The catalyst for the country’s withdrawal was Omar al-Bashir’s presence at an AU Summit in Johannesburg in <a href="https://theconversation.com/why-a-great-deal-hangs-on-al-bashirs-fate-in-south-africa-43229">2015</a>. The Sudanese president is wanted by the ICC on charges of genocide, war crimes and <a href="https://www.icc-cpi.int/darfur/albashir">crimes against humanity</a>. He was the first sitting head of state to be indicted.</p>
<p>As a signatory to the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a> that governs the jurisdiction and functioning of the court, South Africa was obliged to arrest al-Bashir and extradite him to The Hague to face trial. </p>
<p>But the government refused to arrest him. It cited the impact this might have on ongoing peace negotiations in Sudan and the decision to grant immunity to all delegates attending the AU Summit. </p>
<p>In March this year South Africa’s Supreme Court of Appeal accused the government of <a href="http://www.saflii.org/za/cases/ZASCA/2016/17.pdf">“disgraceful conduct”</a> and ruled that the failure to arrest al-Bashir was <a href="https://www.theguardian.com/world/2016/mar/16/south-african-court-rules-failure-to-detain-omar-al-bashir-was-disgraceful">unlawful</a>. Unsurprisingly, the government remained unrepentant.</p>
<p>In the case of Burundi, there is general agreement that the <a href="http://af.reuters.com/article/commoditiesNews/idAFL4N1CI3RX">decision to withdraw</a> from the court is informed purely by self-interest. President Pierre Nkurunziza’s government is attempting to avoid an ICC investigation into ongoing human rights abuses since <a href="https://www.icc-cpi.int/burundi">last year</a>. But some legal scholars argue that its withdrawal will have no effect on the court’s jurisdiction over the <a href="https://justiceinconflict.org/2016/10/16/burundis-awkward-and-mostly-pointless-farewell-to-the-icc/">alleged crimes</a>. </p>
<p>South Africa’s decision raises concerns about global justice more broadly, and more specifically the issue of immunity for heads of state. </p>
<p>First, a number of human rights NGOs, among them Human Rights Watch, have <a href="https://www.hrw.org/news/2016/10/22/south-africa-continent-wide-outcry-icc-withdrawal">decried the decision</a> as a “slap in the face for victims of the most serious crimes”. According to the African Centre for Justice and Peace Studies </p>
<blockquote>
<p>South Africa’s intended withdrawal from the ICC represents a devastating blow for victims of international <a href="http://www.acjps.org/south-africa-continent-wide-outcry-at-icc-withdrawal/">crimes across Africa</a>. </p>
</blockquote>
<p><a href="http://www.businesslive.co.za/news/latest-news/2016-10-24-senegalese-icc-official-asks-sa-to-rethink-its-move-to-withdraw-from-the-court/">Senegal has called</a> on South Africa and Burundi to reconsider their decisions.</p>
<p>Second, under the leadership of then President Nelson Mandela, the country played an important role in encouraging other southern African states to ratify the <a href="https://www.justsecurity.org/33731/justice-richard-goldstone-south-africas-attempt-withdraw-intl-criminal-court-unconstitutional/">Rome Statute</a>. According to renowned jurist <a href="http://tgchambers.com/member-profile/justice-richard-goldstone/">Justice Richard Goldstone</a>, South Africa’s withdrawal detracts from Mandela’s <a href="https://www.justsecurity.org/33731/justice-richard-goldstone-south-africas-attempt-withdraw-intl-criminal-court-unconstitutional/">“inspiring legacy”</a>. <a href="http://tgchambers.com/member-profile/justice-richard-goldstone/">Goldstone</a> is the former chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and International Criminal Tribunal for Rwanda. </p>
<p>In announcing its decision, South African’s Department of Justice <a href="http://www.dirco.gov.za/docs/speeches/2016/masu1021.htm">argued</a> that its obligations under the Rome Statute where in conflict with its obligations under customary international law. It said:</p>
<blockquote>
<p>… the Rome Statute of the International Criminal Court compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the International Criminal Court […] and to surrender such persons to the International Criminal Court. We wish to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent.</p>
</blockquote>
<p>In fact South Africa adopted the Rome Statute into domestic law <a href="http://www.saflii.org/za/legis/num_act/iotrsoticca2002699.pdf">in 2002</a>.</p>
<h2>Immunity</h2>
<p>Sovereign immunity was a well-established norm of international society for much of the modern period. But since the end of the Cold War it is a norm that has been gradually eroded through judicial decisions. An example is the <a href="http://www.ejil.org/pdfs/10/2/581.pdf">Pinochet case</a>. </p>
<p>Immunity has been further eroded by new human rights norms, such as responsibility to <a href="http://www.un.org/en/preventgenocide/adviser/responsibility.shtml">prevent genocide</a> and the establishment of new international criminal justice mechanisms. These include the tribunals for Yugoslavia and Rwanda. </p>
<p>Indeed, the establishment of the ICC was lauded as codification of the idea that heads of state were no longer beyond the law. Thus South Africa’s decision appears to be both morally and legally regressive. </p>
<p>This year, following the embarrassment of the<a href="http://www.dailymaverick.co.za/article/2016-04-07-the-great-escape-how-kenyatta-and-ruto-beat-the-icc/#.WA8SH_p97IU"> Kenyatta and Ruto cases</a>, the court, through the recent convictions of Jean-Pierre <a href="https://www.icc-cpi.int/car/bemba">Bemba Gombo</a> and Ahmad al-Faqi <a href="https://www.icc-cpi.int/mali/al-mahdi">al-Mahdi</a>, made significant progress in undermining the idea of sovereign immunity (Bemba) and the extension of what is not acceptable during combat (Mahdi). </p>
<p>South Africa’s decision is not a death-knell to the ICC. Nonetheless these latest developments are of justifiable concern to the court. The president of the ICC’s <a href="https://asp.icc-cpi.int/en_menus/asp/assembly/Pages/assembly.aspx">Assembly of States Parties</a> has called on both countries to reconsider their positions. This, amid fears that</p>
<blockquote>
<p>this disturbing signal would open the way to other African States <a href="https://www.icc-cpi.int//Pages/item.aspx?name=pr1248">withdrawing from the Rome Statute</a>. </p>
</blockquote>
<p>South Africa’s withdrawal will take a year to <a href="https://theconversation.com/leaving-the-icc-wont-absolve-south-africa-of-its-legal-obligations-50558">come into effect</a>. In the days since the withdrawal became public, the decision has been declared unconstitutional by civil society groups. They are promising a <a href="http://www.iol.co.za/news/africa/sas-decision-to-withdraw-from-icc-slammed-2082295">legal challenge</a>. </p>
<p>But the ongoing success, and indeed relevance, of the ICC will not be determined by legal challenges in South Africa. Rather its relevance will be determined by African states party to the <a href="https://www.icc-cpi.int/asp">court</a> who have overcome the damaging legacy of sovereign immunity. Likewise, the voices of those who without the court would have no recourse to any form of justice will ultimately determine its existence and relevance.</p><img src="https://counter.theconversation.com/content/67470/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matt Killingsworth does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ICC has made important advances by investigating cases outside Africa and completing ones that further define what is not allowed in war. South Africa’s withdrawal is concerning, but not fatal.Matt Killingsworth, Head, Politics and International Relations, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674892016-10-21T15:30:15Z2016-10-21T15:30:15ZWithdrawal from the ICC: A sad day for South Africa and Africa<figure><img src="https://images.theconversation.com/files/142686/original/image-20161021-1769-1vqzjqp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sudan's President Omar al-Bashir during a rally against the ICC. </span> <span class="attribution"><span class="source">Mohamed Nureldin Abdallah/Reuters</span></span></figcaption></figure><p>South Africa is <a href="http://www.aljazeera.com/news/2016/10/south-africa-formally-applies-quit-icc-media-161021044116029.html">withdrawing</a> from the Rome Statute which established the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">International Criminal Court (ICC)</a>. The Minister of International Relations and Cooperation, Maite Nkoana-Mashabane, signed the <a href="http://www.chr.up.ac.za/images/stories/chr/news/centrenews/2016/Instrument%20of%20Withdrawal%20ICC.jpg">Instrument of Withdrawal</a> on 19 October, following a cabinet decision. </p>
<p>It is a sad day for South Africa. It is a sad day for Africa. Why did it come to this?</p>
<p>The minister states that the reason for the withdrawal is that: </p>
<blockquote>
<p>[South Africa] has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court.</p>
</blockquote>
<p>At a <a href="http://www.news24.com/SouthAfrica/News/live-international-criminal-court-announcement-20161021">press conference</a> on October 21 South Africa’s Minister of Justice and Constitutional Development, <a href="http://www.dcs.gov.za/AboutUs/OurMinister.aspx">Michael Masutha</a>, put forward further reasons. He said the Supreme Court of Appeal had held in the <a href="http://www.justice.gov.za/sca/judgments/sca_2016/sca2016-017.pdf">Omar al-Bashir case</a> that the Implementation of the Rome Statute of the International Criminal Court <a href="http://www.saflii.org/za/legis/num_act/iotrsoticca2002699.pdf">Act,</a> was in conflict with the Diplomatic Immunities and Privileges <a href="http://www.gov.za/sites/www.gov.za/files/38310_gon1009.pdf">Act</a>. </p>
<p>Because of this conflict the government decided that the ICC Act should be repealed and that South Africa should withdraw from the ICC. This, according to the Justice minister, will avoid a situation where South Africa cannot welcome foreign dignitaries that enjoy immunity under the Diplomatic Immunities and Privileges Act.</p>
<p>The minister noted that the government would withdraw its appeal of the Supreme Court of Appeal judgment to the Constitutional Court, a case that was set to be heard in <a href="http://www.chr.up.ac.za/index.php/centre-news-a-events-2016/1707-joint-press-release-international-and-local-ngos-as-friends-of-the-court-file-submissions-before-the-constitutional-court-in-the-al-bashir-case.html">November</a>. The government had challenged the finding by the Supreme Court of Appeal that the obligations under the ICC Statute should take precedence over the customary international law norm of immunity.</p>
<p>According to Masutha, parliament will be informed about the cabinet decision to withdraw from the ICC statute and a bill to repeal the ICC Act will soon be tabled in parliament.</p>
<p>According to the minister the constitution is clear. To withdraw from a treaty is the prerogative of the executive. The minister reportedly stated:</p>
<blockquote>
<p>It is the prerogative of executive to enter into, and also withdraw, from international agreements.</p>
</blockquote>
<p>This is not correct. The relevant parts of section 231 of the Constitution provides that:</p>
<blockquote>
<p>(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces. But, it must be tabled in the Assembly and the Council within a reasonable time.</p>
</blockquote>
<p>Clearly sub-section 3 is not applicable and the Rome Statute was indeed ratified by parliament in line with the provision of section 231(2). There is no provision in the <a href="http://www.gov.za/documents/constitution/constitution-republic-south-Africa-1996-1">Constitution</a> on withdrawal. Clearly withdrawal does not fall within the executive’s power to negotiate and sign international agreements.</p>
<p>The South African government’s decision to withdraw from the ICC should not be seen in isolation. Indeed the African Union has called on its member states to <a href="http://saharareporters.com/2016/07/29/calls-africas-withdrawal-icc-suffers-set-back-au-summit">withdraw from the statute</a>. The ringleader of this movement, Kenyan president Uhuru Kenyatta, was upset over his <a href="https://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court">indictment </a>by the ICC (since withdrawn), but is yet to effectuate its own withdrawal.</p>
<p>One of the reasons is that Kenya is taking the parliamentary route and parliament has not yet approved the withdrawal. In Burundi, a state in crisis where international crimes have recently been <a href="https://www.icc-cpi.int/burundi">perpetrated</a>, parliament has <a href="http://af.reuters.com/article/commoditiesNews/idAFL4N1CI3RX">voted for withdrawal</a> from the ICC Statute and the president signed the bill of withdrawal. </p>
<p>It is not yet clear whose withdrawal will be the first to reach the UN secretary general, the depository of the ICC Statute. Will South Africa go down in history as the first country to officially withdraw support from the ICC since the infamous <a href="http://www.alternet.org/story/13055/bush_'unsigns'_war_crimes_treaty">“unsigning”</a> of the ICC statute by then US President Bush in 2001?</p>
<h2>Chance of a challenge</h2>
<p>South Africa’s decision to withdraw will be challenged but given the majority that the governing ANC enjoys in parliament, it is likely that in the end it will stand. </p>
<p>But, there is no need to throw the baby out with the bath water. If South Africa does withdraw from the ICC it may want to amend the ICC Act (not doing so would make withdrawal quite meaningless). But, parliament should not agree to repeal the statute as a whole but rather amend it. Thus genocide, crimes against humanity and war crimes should remain on the statute book.</p>
<p>The African Union alternative to the ICC Statute, the <a href="http://www.au.int/en/sites/default/files/treaties/7804-treaty-0045_-_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf">2014 Malabo Protocol</a>, remains a paper tiger as no state has yet ratified it.</p>
<p>When 15 AU member states have ratified the Malabo Protocol, the African Court of Justice and <a href="http://www.au.int/en/sites/default/files/treaties/7792-file-protocol_statute_african_court_justice_and_human_rights.pdf">Human Rights</a> could start to function with criminal jurisdiction. South Africa would then have to open the public purse to finance it. The court currently has state responsibility jurisdiction, which costs much less than criminal trials. </p>
<p>If the Malabo Protocol enters into force, the issue of immunity is taken care of. The protocol provides in article 46bis that heads of state and senior state officials enjoy immunity. It’s a sad day for international justice when those, the political leaders, who in many instances are most responsible for international crimes can evade justice.</p><img src="https://counter.theconversation.com/content/67489/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Magnus Killander does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The South African government’s decision to withdraw from the ICC should not be seen in isolation. The African Union has called on its member states to withdraw from the court.Magnus Killander, Associate Professor, Centre for Human Rights in the Faculty of Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/505582015-11-13T04:07:26Z2015-11-13T04:07:26ZLeaving the ICC won’t absolve South Africa of its legal obligations<figure><img src="https://images.theconversation.com/files/101705/original/image-20151112-9393-76pelc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Jacob Zuma being welcomed on his arrival in Khartoum by Sudan's President Omar al-Bashir earlier this year.</span> <span class="attribution"><span class="source">Reuters/Mohamed Nureldin Abdallah</span></span></figcaption></figure><p>South Africa appears almost destined to withdraw from the International Criminal Court (ICC) if the governing African National Congress has its way. A hardening of the party’s position comes after the fallout over the government’s failure to arrest Sudanese President <a href="http://www.bbc.com/news/world-africa-16010445">Omar al-Bashir</a>, a fugitive from international law.</p>
<p>But, if it succeeds, the move could have mere symbolic value. As a member of the United Nations, South Africa will continue to have international obligations to binding decisions taken by the UN Security Council – even those pertaining to the <a href="http://www.haguejusticeportal.net/index.php?id=310">ICC</a>. This is true even if it is no longer a member of the <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en">Rome Statute</a> under which the ICC was set up.</p>
<p>The decision to <a href="http://www.anc.org.za/show.php?id=11694">leave the ICC</a> gained force at the governing ANC’s policy <a href="http://www.anc.org.za/events.php?t=National%20General%20Council%20-%202015">review conference</a> in October. The move must still be approved by parliament and will only take effect a year after the ICC has been notified.</p>
<p>The decision came shortly after the government had lost an <a href="http://mg.co.za/article/2015-09-16-govt-denied-leave-to-appeal-al-bahir-case">appeal</a> against an earlier court ruling that it must prevent al-Bashir from <a href="http://www.saflii.org/za/cases/ZAGPPHC/2015/402.html">leaving</a> the country after attending an African Union <a href="http://summits.au.int/en/25thsummit/accreditation">summit</a> in Johannesburg.</p>
<p>This court ruling was the second against the government involving the Rome Statute. In 2014, it was <a href="http://www.saflii.org/za/cases/ZACC/2014/30media.pdf">ordered</a> by South Africa’s Constitutional Court to investigate claims of crimes against humanity committed in Zimbabwe by members of President Robert Mugabe’s governing ZANU-PF party. They were known to be travelling to South Africa from time to time.</p>
<p>The Constitutional Court invoked South Africa’s <a href="http://www.saflii.org/za/cases/ZACC/2014/30media.pdf">duties</a> under the Rome Statute and the country’s own <a href="https://www.issafrica.org/uploads/Paper172.pdf">ICC Act of 2002</a>. </p>
<h2>A host of objections to the ICC</h2>
<p>The ANC believes that the <a href="http://www.bdlive.co.za/national/2015/10/11/sa-plans-to-leave-international-criminal-court-says-bapela">“ICC has lost its direction”</a>. Accordingly Ribbon Mosholi, the ANC’s international relations manager, objects to the “geopolitical context” in which the <a href="https://www.facebook.com/RobinsonRegstreeks?fref=nfl">ICC operates</a>.</p>
<p>This is diplomatic speak for powerful states that refer cases to the ICC in their capacity as permanent members of the UN Security Council while they themselves are not members of the Rome Statute. These are the US, China and Russia. The US is usually singled out here. The ANC is closer to China and Russia, which is why they are seldom, if at all, mentioned.</p>
<p>This needs closer analysis.</p>
<p>The power to refer cases to the ICC is given to the UN Security <a href="http://www.un.org/en/sc/">Council</a> under Article 13(b) of the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">Rome Statute</a>. When referring events that need investigation to the ICC, the Security Council acts under Chapter VII of the <a href="http://www.un.org/en/documents/charter/chapter7.shtml">UN Charter</a>, which deals with threats to international peace and security. </p>
<p>A referral by the Security Council under Chapter VII is binding on all UN member nations. But a referral also needs the concurring votes of the five permanent members – US, UK, France, China and Russia. Any one of them can veto a referral. Thus, the geopolitical context the ANC is so unhappy about is an inherent feature of the UN Charter, which has been in place since 1945. To blame the ICC for it is disingenuous.</p>
<p>African leaders also like to invoke what they call the ICC’s <a href="http://www.dailymaverick.co.za/article/2015-10-26-op-ed-how-africa-can-fix-the-international-criminal-court/#.VkR6a7crLnB">targeting</a> of African states. There is a point in this argument if it means that the ICC turns a blind eye to atrocities in other, non-African, countries. But this argument is losing its allure. The current list of preliminary investigations by the ICC clearly shows that it has a number of <a href="https://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx">non-African</a> countries in its sights. These include Afghanistan, Iraq and Colombia.</p>
<p>There are other grounds for the ANC’s anti-ICC stance – <a href="http://citizen.co.za/443051/no-part-for-sa-to-play-in-bashir-arrest-zuma/">echoed</a> by President Jacob Zuma and other government <a href="http://www.news24.com/SouthAfrica/News/Government-criticised-by-opposition-in-al-Bashir-debate-20150623">officials</a>. The first is the High Court ruling on al-Bashir. This obviously embarrassed the South African government. And being the governing party, the ANC had to act in solidarity with the government. </p>
<p>Another, and perhaps more compelling, reason is the predilection of African leaders to protect sitting heads of state, no matter how grave the allegations against them. No wonder the ANC has called for an amendment to South Africa’s ICC Act so that sitting heads of state can enjoy immunity against criminal proceedings involving international crimes. </p>
<p>This follows the 2014 African Union Summit <a href="http://www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute/">decision</a> to amend the Protocol of the African Court of Justice and Human Rights so that sitting heads of state and government and other senior government officials can claim immunity against criminal proceedings for mass atrocities in the <a href="https://www.justsecurity.org/wp-content/uploads/2014/07/Legal-Instruments-Adopted-in-Malabo-July-2014.pdf">African Court</a>.</p>
<p>There is obviously no sensitivity for the rights of victims who may have suffered unimaginable brutalities through state-sponsored terror campaigns.</p>
<h2>South Africa’s obligations extend beyond the ICC</h2>
<p>The al-Bashir case, and others, may remain a headache for the South African government – even as a non-party to the Rome Statute. </p>
<p>For instance, as a UN member the country may still have to honour binding Security Council resolutions urging all states to cooperate fully with the ICC as is the case with <a href="http://www.un.org/press/en/2005/sc8351.doc.htm">Resolution 1593</a>. This resolution referred the situation in Darfur to the ICC. It forms the basis for the indicment of al-Bashir for atrocities and mass murder.</p>
<p>On October 26, the resolution was invoked by the ICC’s Chief Prosecutor to request India – a non-party to the Rome Statute – arrest and surrender <a href="http://www.icc-cpi.int/iccdocs/doc/doc2125314.pdf">al-Bashir</a>. At the time it was known that al-Bashir intended to attend an India-Africa Summit in New Delhi at the invitation of the <a href="http://www.ibtimes.co.uk/omar-al-bashir-india-pressured-revoke-invitation-sudanese-leader-over-darfur-war-crimes-1524796">Indian government</a>.</p>
<p>While the ANC is contemplating its next move, the South African government still owes the ICC an explanation for its failure to arrest and surrender al-Bashir. The ICC gave South Africa until October 5 to <a href="http://www.icc-cpi.int/iccdocs/doc/doc2044798.pdf">respond</a>.</p>
<p>Claiming that the local courts are still “seized” with the matter, South Africa requested an extension of time. It now has until December 31 to inform the ICC of the status of developments. In granting the extension, the ICC confirmed South Africa’s continuing obligations to <a href="http://www.icc-cpi.int/iccdocs/doc/doc2126382.pdf#search=Al%20Bashir%20and%20South%20Africa">arrest and surrender al-Bashir</a>.</p><img src="https://counter.theconversation.com/content/50558/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hennie Strydom receives funding from the National Research Foundation. </span></em></p>South Africa’s withdrawal from the ICC could have mere symbolic value. The country will continue to have obligations to binding decisions taken by the UN Security Council – including those pertaining to the court.Hennie Strydom, Professor in International Law, NRF Research Chair in International Law, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.