Overview by Jill Baehring, Research Associate PILPG-NL
Athalia Molokomme, Attorney General of Botswana, said she strongly believes that it is everyone’s duty and responsibility to be present at the Assembly of States Parties and to support both the Rome Statute and the Court itself. She emphasized that it was necessary to focus not only on the issues, but also on the positive aspects of the relationship between the Court and Africa.
Richard Goldstone, Former Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda and the former Yugoslavia and citizen of South Africa, emphasised that he was saddened by South Africa’s announcement to withdraw, especially because its leading role in promoting the ICC even before its establishment. He highlighted that the notice of withdrawal had raised many unusual legal problems regarding the constitutionality of a withdrawal, and finished saying that he expected an extended period of debate on the issue.
ICC President Silvia Fernández de Gurmendi said that, despite all difficulties, the Rome Statute had been a valuable point of reference for material law in many countries and was therefore a role model for the progress of international criminal law.
The side event was opened by recalling the foundation of the Africa Group for Justice and Accountability (AGJA) in 2015. Subsequently, ICC President Silvia Fernández de Gurmendi held a speech honoring the AGJA’s efforts to facilitate regional dialogue with the court and its capacity-building initiatives in the continent. She expressed hope that the AGJA would inspire the foundation of many similar groups around the globe. She also addressed the recent announcements of withdrawal of three African States Parties, which had caused concerns about justice in Africa as well as about the future of the Court. She said that, despite all difficulties, the Rome Statute had been a valuable point of reference for material law in many countries and was therefore a role model for the progress of international criminal law.
The Moderator of the panel, Researcher Mark Kersten, held a short introduction on the panel’s art exhibition “through the looking glass” and presented the speakers. He introduced the expectations of justice as the broader question of the side event.
Artist Bradley McCallum presented his work, which is a preview of an exhibition on international justice to be opened in Johannesburg, South Africa, in 2017. The exhibition contains 20 large painting of defendants of several trials in the African continent and will be complemented by a series of audio portraits of victims and witnesses.
Mark Kersten asked Athaliah Molokomme, Attorney General of Botswana, if the recent events had made her more or less hopeful in regard to international justice. Athalia Molokomme replied that she strongly believed that it is everyone’s duty and responsibility to be present at the Assembly of States Parties and to support both the Rome Statute and the Court itself. She said that she was happy to hear that many States Parties reinstated their support for the Court, and that the ICC was still the best hope for a future without impunity for the worst crimes. She emphasized that it was necessary to focus not only on the issues, but also on the positive aspects of the relationship between the Court and Africa.
When asked for a need for an improved dialogue, Fatiha Serour, Director of Serour Associates for Inclusion and Equity in Algeria said that justice and accountability were principles that were not negotiable, and that the main principles of dialogue were that it was based on respect, mutual trust and understanding. She highlighted the need to focus on a more practical approach and to continue to address issues which caused division.
Richard Goldstone, Former Chief Prosecutor of the United Nations International Criminal Tribunal for Rwanda and the former Yugoslavia and citizen of South Africa, emphasised that he was saddened by South Africa’s announcement to withdraw, especially because its leading role in promoting the ICC even before its establishment. He also highlighted that the notice of withdrawal had raised many unusual legal problems regarding the constitutionality of a withdrawal. He announced a public hearing on the issue in front of the High Court in South Africa, during which he hopes civil society will engage. He finished saying that he expected an extended period of debate on the issue.
Dapo Akande, Professor of Public International Law, University of Oxford, said that the project if international justice was long-term, and that the general direction mattered more than difficulties at moments in time. He also emphasized that the questions regarding the implementation of Articles 27 and 98 was not easy, and that the ICC itself had interpreted them differently. He said that, regarding the case of Al-Bashir, these questions should have been raised when the arrest warrant was issued, and not when there was already a time pressure existing. He recognized structural difficulties of the process and advocated for the establishment of a procedure in which concerns from all sides, including the accused, can be heard.
When asked which other mechanisms of justice were functioning well, Hassan Bubacar Jallow, Prosecutor at the International Criminal Tribunal for Rwanda and International Residual Mechanism for Criminal Tribunals, answered that dialogue was the most important mechanisms. Generally, it was true that there was a lack of measures in relation to accountability systems independent from the Rome Statute. The global architecture of justice had several components, of which each of them had advantages and disadvantages. He highlighted that the success of accountability depended on an effective partnership between the ICC and national as well as regional courts.
Bradley McCallum expressed his hope to contribute to such dialogue with his art by reframing the structural challenges of the colonial critique and by opening up new ways of communication by his paintings. Richard Goldstone said he didn’t believe in a mass withdrawal from the ICC. Fatiha Serour agreed and said that civil society had been growing strong in the past years, meaning that citizens were calling for accountability. She saw this as an indicator for a positive development, which had also created more resilience. She advocated for a multi-stakeholder system of justice and accountability. Athaliah Molokomme added that she believed that the issues of justice and accountability will continue to dominate the discourse in Africa, and that civil society will begin to demand these things. Hassan Bubacar Jallow said that at this low point of the relationship between the Court and Africa, he hoped that only an improvement was possible. He said it was still possible that the three States Parties will defy the process of withdrawal. Dapo Akande added that, even though the ICC now faced new challenges with the announcement of Russia to withdraw its signature and the presidential election in the United States of America, these challenges also might mean a shift away from African States – a critique of such countries could make it more difficult for African states to make the claim of a bias of the Court.
During the questions from the audience, the question on how to start a constructive dialogue and a possible tension between due process and impunity at the ICC were mentioned. Akande rejected the latter and said there were many tools for due process build into the Rome Statute, ensuring this value. Bradley McCallum expressed the hope that the visual language of art was also able to create awareness. Fatiha Serour added that a constructive dialogue could only happen if there was an expressed need and desire to engage in such, and that a dialogue could never be forced. The President of the Court, Silvia Fernández de Gurmendi, added that the ICC was only a part in the system of international justice.