International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

Global Judicial PERSPECTIVe


Withdrawals from the Rome Statute: the Future of the ICC

Richard J. Goldstone

By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor

During October and November 2016 three States Parties to the Rome Statute on the International Criminal Court (ICC) gave notice to the Secretary-General of the United Nations of their withdrawal from the Statute. These notices have been given under the provisions of Article 127(1) of the Rome Statute of 1998. It provides that:

A State Party may, by written notification addressed to the Secretary- General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

Sub-article (2) goes on to provide that:

[A] State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced    prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which   the withdrawal became effective.

The notices of withdrawal by two of the states, Burundi and Gambia, were without doubt the consequence of war crimes allegedly committed in their own countries by their leaders. They were thus acts of self-immunization and protection from the jurisdiction of the ICC. The withdrawal by Gambia must have been particularly galling for two leading actors in the field of international criminal justice - Fatou Bensouda, the Chief Prosecutor of the ICC and Hassan Bubacar Jallow, the former Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda. Happily, immediately after his election on December 2, 2016, as the new President of Gambia, Adama Barrow, announced that he would reverse the decision made by his predecessor to pull out of the ICC.

The third notice of withdrawal was given by my own country, South Africa. That came about for a completely different reason, namely, decisions by South African courts holding that the government had acted unconstitutionally and in violation of a statutory duty in failing to have arrested the President of Sudan, Omar Al-Bashir, when he attended an African Union meeting in Pretoria in July 2015. The decisions, respectively of the High Court and the Supreme Court of Appeal, were founded upon the obligation that rested upon the Government, under South African law, to have arrested Al-Bashir. That arose from the provisions of the Implementation of the Rome Statute of the International Criminal Court Act of 2002 (the Implementation Act). The promulgation of the Implementation Act followed on the ratification by South Africa of the Rome Statute and, until repealed, remains of full force and effect. An appeal by the Government to the Constitutional Court was set down to be heard on November 22, 2016. The Government, however, rather than face another setback in the Constitutional Court, decided to abandon the appeal and withdraw from the Rome Statute. Since issuing the Notice of Withdrawal, a Bill has been submitted to Parliament for the repeal of the Implementation Act.

The Implementation Act obliges the Government to cooperate fully with the ICC. An application to have the notice of withdrawal declared unconstitutional and unlawful was heard in the High Court on December 5 and 6, 2016. The relief claimed includes an order compelling the Government to take steps to ensure that the withdrawal is made affective not only domestically but also from internationally. If the Court rules against the Government, and the Government decides to persist with its decision to withdraw from the Rome Statute, it would be required to give a new notice if and when the Implementation Act is repealed by


Parliament. The Parliamentary proceedings will take some months and certainly well into the first quarter of 2017. Under the South African Constitution, controversial legislation is required to be debated by both Houses of Parliament, and in addition, there is required to be a full public debate between the Houses of Parliament and the public at large. An opportunity has to be given to civil society to make known to Parliament its views and concerns. There will undoubtedly be a vigorous debate. It is my hope that time and the ensuing debate might help persuade the South African Government to reconsider this unfortunate and regressive step.

In considering such a change of stance with regard to the Rome Statute, attention should be given by our present leaders to the supportive role South Africa played in the drafting of Rome Statute and in the debates that took place at the 1998 Rome Conference. And, after the Statute was agreed upon, South Africa played an active role in helping persuade other Southern African countries to ratify it. South Africa played those roles in the context of the material support that was furnished by international community in bringing to an end the abhorrent Apartheid policy that for decades had oppressed and victimized the majority of our people. As early as 1973 the United Nations agreed upon the terms of the International Convention on the Suppression and Punishment of the Crime of Apartheid. That convention appropriately determined that Apartheid constituted a crime against humanity.

The first democratic government in the history of South Africa, headed by President Nelson Mandela, was a staunch supporter of international criminal justice and the system of complementarity which underlies the Rome Statute. South African lawyers took pride in the principled stand our Government took to bring an end to impunity for those responsible for the most heinous international crimes - genocide, crimes against humanity and war crimes. It identified with the victims and survivors of those crimes. It would be counter to those principles now to withdraw from the Rome Statute.

One of the grounds of recent African opposition to the Rome Statute is that it does not grant head of state immunity. Such immunity, I would suggest, would run counter to developments in international criminal justice during the past 75 years. In the London Agreement under which the Nuremberg Tribunal operated in 1945, head of state immunity was expressly disallowed as a defense. And that position with regard to international crimes has been reflected in international criminal law ever since. Those most responsible for the commission of international atrocity crimes are the individuals who give the orders for them to be perpetrated. It is those leaders who should, before all others, be brought to justice. The International Court of Justice, in the case of Democratic Republic of the Congo v Belgium recognized that in customary international law heads of state and government and ministers of foreign affairs enjoyed absolute immunity from investigation and prosecution. It recognized too that such immunity did not protect leaders who faced charges for international crimes in an international criminal court.

It has also been suggested that mediating civil wars, such as that in Sudan, is hindered by non-recognition of head of state immunity. I have difficulty in understanding why any mediating efforts should not be held in the country where the crimes are being committed. If South Africa was indeed playing a mediating role in Sudan that was no good reason for inviting President Al-Bashir to South Africa at a time when he was subject to a warrant of arrest issued by the ICC on charges including genocide, crimes against humanity and other war crimes.

At the recent meeting of the Assembly of States Parties held in The Hague, the South African Minister of Justice reported that he had held constructive discussions with the President of the ICC, Silvia Fernández de Gurmendi. It would be in the interests of the victims of international crimes, wherever they might be, for that discussion to lead to a reconsideration by the South African Government of its decision to withdraw from the Rome Statute. There are clearly imperfections in the Rome Statute, in the manner in which the ICC is running its affairs, and in the imbalance of the situations presently before the ICC. Those problems should be considered and resolved by the States Parties to the Rome Statute by discussion and negotiation. Withdrawal is a wholly inappropriate route on which to embark. It would amount to turning a deaf ear to the cries for justice from millions of victims on our own continent and beyond.

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