By Rosalie Dieleman, Research Associate PILPG-NL
The withdrawal of the three African states Gambia, South Africa and Burundi prompted a majority of states‘ representatives to express regret at the decision of these states to withdraw from the ICC. They invited them to reconsider their decision and engage in a constructive dialogue during the ASP.
South Africa: “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed.”
Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute.
The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states.
Several states called upon the Security Council to take action with respect to the situation in Syria.
During the second plenary meeting of the 15th Assembly of State’s parties on 16 November 2016, 25 state parties to the Rome Statute have issued statements. A topic that was addressed by each of these states was the withdrawal of the three African states Gambia, South Africa and Burundi. Many of these 25 states expressed that they regretted the decision of these countries to withdraw from the ICC, and have invited them to reconsider their decision and engage in a constructive dialogue during the ASP.
South Africa, as one of the states that is withdrawing from the ICC, expressed that “there are perceptions of inequality and unfairness in the practice of the ICC that do not only emanate from the Court’s relationship with the Security Council, but also by the perceived focus of the ICC on African states, notwithstanding clear evidence of violations by others”. And that the “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed”. In the statement, South Africa stressed that the Rome Statute cannot be regarded as a static instrument and that it must be amended to address its weaknesses. On the other hand, the Democratic Republic of the Congo declared that, despite the difficult context and the growing temptation, it will not be withdrawing from the ICC. The DRC expressed that the trust in the ICC is being undermined as serious crimes are being committed on a daily basis and on a broad scale, while the perpetrators are being protected. Consequently, the DRC believes that now is the time for the Assembly to take a serious look at the concerns expressed by the African nations.
Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute. Austria expressed that it very much regretted the withdrawal of three states, however that it is still important to stress the important role of African States, leaders and civil society in the establishment of the Court. Austria added that the ICC has a unique role in delivering justice to victims, and that it hopes Burundi, South Africa and Gambia will reconsider their withdrawal. Costa Rica expressed that it is especially sad that one of the standard-bearers of the Rome Statute has withdrawn. Costa Rica added that the Court should undergo improvements if this is necessary, and that this may very well include revision of the Rome Statute. Colombia expressed its concern about these recent developments and the fact that they stand in the way of universality of the ICC. Colombia expressed the importance of getting to the bottom of this issue, cutting through the false reasons and getting to the genuine problems underlying these decisions. In addition, it declared that the diversity of the parties to the Rome Statute is something that should be celebrated. The ambassador of Slovakia, also representing the European Union in this statement, expressed its concerns about the relationship between the ICC and some governments, and stressed the importance of dialogue and constructive communication between states. The Netherlands statement stressed that walking away is not the solution, and that the only solution is improving the Rome Statue system.
On the other hand, there were several states that emphasized the need to reaffirm the fundamental principles of the Court as a response to these challenges. Australia engaged in a passionate statement in which it stressed that it should be important to reaffirm, and not to undermine the fundamental principles of the Rome Statute. It added to the discussion that when states leave the ICC, they also take with them their history, their voices and their diverse perspectives. Norway engaged both lines of argument by stating that it believes that it is possible to address the critique of the African states whilst adhering to the fundamental principles of the Rome Statute.
The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states. Germany expressed in this regard that it considers the jurisdiction of the Court incomplete without jurisdiction over the crime of aggression, and that reaching the threshold of 30 ratifications has been very encouraging. Finland expressed that the Kampala amendments will enter into force in Finland at the end of the year, and that it is looking forward to the activation of the crime of aggression at the next ASP. In addition, Italy announced that it expects to ratify the Kampala amendments soon.
Another issue that was addressed in various statements is the referral power by the United Nations Security Council. The Slovakian ambassador, representing Slovakia as well as the European Union, called upon the Security Council to take action with respect to the situation in Syria. The Republic of Korea also addressed the necessity of the Security Council to direct its attention to alleged ongoing human rights abuses. In addition, Palestine requested prompt investigation into alleged crimes of which the Palestinian people have been victim.