The purpose of this article is to examine whether the arguments that have been advanced thus far by some African Member States for withdrawing from the International Criminal Court (ICC) have merits and are evidence-based.
In examining this question, one has to refer to the reasons for the establishment of the Court, its jurisdiction and methods of work.
The preamble paragraph of the Rome Statute, among others, states that millions of children, women and men have been victims of unimaginable atrocities that have deeply shocked the conscience of humanity. Further, that the International Criminal Court is complementary to national criminal jurisdictions. It presupposes, therefore, that the ICC is a court of last resort.
It is also important to note that the ICC has jurisdiction with respect to crime of genocide, crimes against humanity, war crimes and the crime of aggression. Consistent with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Rome Statute defines genocide as: “Killing members of the group, causing serious bodily or mental harm to members of the group and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
In my view, State Parties, including Namibia, have to ask themselves tough questions when withdrawing from supranational bodies. Firstly, why did they voluntarily become State Parties to such bodies? Sometimes without understanding the obligations of becoming members. Secondly, do they have national capacities to prevent genocide and crimes against humanity taking place in their territories taking into account that most States, especially in Africa, are fragile and weak states? Thirdly, what is the recourse for victims of genocide and crimes against humanity when their States and groups within are the perpetrators of such crimes?
In objectively answering these questions, I would argue that the ICC remains relevant, if crimes against humanity and impunity are to be prevented. The African Member States withdrawing from the Court following a resolution of the extraordinary session of the African Union Assembly on 12 October 2013 seem to base their arguments mainly on the perceived bias of the Court towards African leaders. It is evident that the Court has investigated more African leaders compared to leaders from other parts of the world.
It is also evident that most of the conflicts in the world today are in Africa. Some of the States that are commonly cited in trying to prove the bias of the ICC are not State Parties to the Rome Statute.
They have perhaps understood the implications of becoming State Parties. It is also important to emphasise that cases are normally referred to the ICC by State Parties or the United Nations Security Council. In the case of the Central African Republic, the alleged war crimes and crimes against humanity were referred by the Government of the Central African Republic. The cases of Darfur, Sudan and Kenya were referred by the United Nations Security Council and the ICC Prosecutor, respectively. In my view, the withdrawals are not necessarily a result of the perceived bias of the Court, but the unfamiliarity with the implications of Article 27. The Article states: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.” This is the elephant in the kraal.
The lessons that Namibia could learn include, the need to institutionalise the State and appointment of administrative officials who can manage a modern State solely on merit. This is important in internalising and advancing the principles and values of the Namibian Constitution. We should always remember that you can have a constitution without constitutionalism. Secondly, Namibia needs to strengthen national criminal jurisdiction to deal with crime effectively and without fear or favour. Thirdly, the principles and value of our Constitution and our conscious should inform the country’s position in international engagements.
Marius Kudumo is the Director of International Relations at the Namibia University of Science and Technology. He holds a Master of Policy Studies degrees specializing in International Relations from the Southern African Regional Institute for Policy Studies in Zimbabwe.