Overview by Emma Bakkum, Rosalie Dieleman, Kim Ogonda, George Plevris, Research Associates PILPG-NL
Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values.
Many states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue.
Burundi and many other states such as Venezuela, Tunisia and France, raised the issue of complementarity and reiterated that the ICC is a court of last resort.
The role and relationship that the United Nations Security Council (UNSC) has with ICC was criticized in the statements of many State Parties.
The perception of the ICC’s perceived bias towards the African continent was mentioned by several states.
The sixth ASP plenary meeting was an Open Bureau Meeting, discussing the relationship between Africa and the ICC against the backdrop of recent decisions to withdraw from the Rome Statute by Burundi, Gambia and South-Africa. The African Union, several member states, and some NGO’s concluded statements. Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values (and commitment to the ICC in many cases). The NGO Kenyans for Peace with Truth and Justice started the meeting with mentioning three challenges facing the court that were reflected in many other statements as well: the role of the UNSC, the problems with head of state immunity relating to articles 27 and 98 of the Rome Statute, and the perceived bias and perception towards Africa.
South African critique
South Africa – stressing that it is one of the founding members of the Rome Statute – once again emphasized the problems it has encountered with regards to head of state immunity, relating to articles 27 and 98 of the Rome Statute. The emphasis in this statement was on the fact that the Court had not attempted to reach out and start a dialogue about this issue, according to South Africa the Court had put nothing to the table with regards to this commitment to dialogue. The statement did however end on a very constructive note. It was stressed that there is no reason for South Africa to celebrate its withdrawal from the Court, and that there is still a 12-month notice period in which it will be open to engagement in order to find solutions to this problem. Many other states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue. Nigeria argued that the problems of the court can be resolved at a round table, and gave an example of Nigeria’s own experience where the Court and the Chief Prosecutor adequately reacted to misgivings that Nigeria had towards the ICC. New Zealand stated that it is open to all constructive dialogue, including convening a high-legal dialogue. The Canadian delegation added that they have come to this Assembly of State Parties to listen, where the UK expressed that they are ready to do “anything in their power” to solve the concerns of the African States. France gave several examples of how to strengthen dialogues, through the ASP, but also by organizing ad hoc sessions in response to the withdrawals. In addition, it called upon the ICC to make use of its existing channels and focus groups, and allow as many states as possible to participate in these discussions.
Burundi mainly came forward in this discussion with critique with regards to how the ICC has applied the complementarity principle to Burundi. Burundi first stressed that their relationship with the ICC has always been a consistent one, and that it is very hard to speak at to the ASP after hearing how deplorable states find their decision to withdraw. They argued that the ICC has not given a lot of regard to the complementarity principle, and that the Court has made it difficult for Burundi to exercise its own rights with regard to investigation and prosecution. Burundi argued that the lack of a policy on the application of the complementarity principle, as well as the discriminatory nature in which the complementarity principle is applied, must be addressed. In addition to Burundi, many other states raised the issue of complementarity, such as Venezuela, Tunisia and France, who iterated that the ICC is a court of last resort. Botswana, additionally expressed that a focus on complementarity also requires a focus on strengthening national courts.
UN Security Council
The role and relationship that the United Nations Security Council (UNSC) has with ICC was heavily addressed in the statements of many State Parties. In particular, attention was paid to universality of the Rome Statute and the incompatibility of this principle when it comes to permanent members of Security Council, of which only 2 are party to the Rome Statute. This does not only create a self-evident problem for principles of justice and universality, but as Botswana and Australia noted, creates issues with regard to the referral power the Security Council has. How can the Security Council maintain powers of referral and deferral when three out of its five permanent members, and most powerful nations in the world, do not recognize and are not parties to the Court itself? Furthermore, the relationship of the UNSC and ICC has often created negative perceptions, of the latter being a political tool in the hands of the veto powers. Greece in its comments about the UNSC underlined the importance of the Court to avoid politicization. NGOs that addressed the plenary pointed out to the need for reform when it comes to the UNSC link to the ICC, while the President of the ASP 15th Session, in a passionate speech, took notice of the need for reflection and possible reform of the UNSC bond with the ICC, through amendments to the Rome Statute. The ASP should be the only proper mechanism to that end.
The perception of the ICC’s perceived bias towards the African continent was mentioned by several states. Italy for example, acknowledges the problem of African states who perceive the ICC as biased and selective. Italy is convinced that dialogue with countries that harbor negative perceptions must be actively pursued in an open, inclusive and transparent manner – as happened during this meeting – because it is important to truly understand the concerns. Italy moreover expressed that ”we have twelve months to re-launch and renew this dialogue”, which may reverse the States’ decisions to withdraw. Slovenia and Argentina both argued that one of the problems that the ICC faces is the negative perceptions about it, especially in public opinion and global media. Both states urge that a greater effort is made to create a better understanding of the court and its system. Brazil concluded that the misperception of bias and selectivity of the court is directly connected to a lack of universality.
Lastly, a few concrete proposals were put forward. Australia argued for this by saying that ”we should make use of the existing infrastructure to put forward concrete proposals”. Kenya, in line with this, expressed some concrete concerns it has, including subcontracted investigations and partisan intermediaries, which undermine the impartiality of the prosecutor and thus the court. In addition to possible ways of strengthening dialogue, France also suggested the option of creating an office of the ICC within the African Union.