Overview by David Lando, Research Associate PILPG-NL
General Debate in third Plenary Session. The debate included a discussion about the withdrawals of States from the Rome Statute, and was concluded in an important speech by the representative of Burundi.
Burundi’s representative defended the withdrawal of the state from the Rome Statute: “it was a decision that expresses the will of the people of Burundi.”
The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC.”
Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”
Uganda: the “withdrawals are not mere masquerading” but reflect deep discontent among states, and that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.”
The States’ proclamations included a wide range of topics. States generally commended the workings of Court for its unprecedented workload in the time since the 14th session of the ASP. This appreciation was also extended personally to the Prosecutor by Iceland. Another topic that was granted specific commendation by a wide range of states was the recent ratification of the Rome Statute by El Salvador.
Andorra representative said: “The objective of universality of the Rome Statute should be sought. We therefore commend the ratification of the Statute by El Salvador. Moreover, many states, such as Spain, Slovenia, Czech Republic, and Latvia, among others, commended the ratification of the Kampala Amendments. The United Kingdom joined these commendations, yet urged “clarity on the jurisdiction of the Court on the Kampala Accords and the crime of aggression”, therefore expressing the view that the Kampala Amendments, and the definition of the crime of aggression, may collide with national sovereignty as the limits of jurisdiction it grants the Court are unclear. Other matter that was shared by many was the congratulations for the recent move to the Court’s new permanent premises.
The most notable statements concerned challenges to the ICC, most commonly the recent States’ notifications of withdrawal from the Rome Statute. The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC”. Similarly, Hungary’s representative voiced its State’s “regret that some States Parties announced their withdrawal”. And added that, “This ASP is an opportunity engage in a constructive dialogue, including those that dissatisfied with the work of the Court.” Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”
Romania also declared that: “it is with deep regret that we received the decision of withdrawals. We encourage these States to reflect on the role of the Court that makes peace and security possible. The withdrawals send a message to the victims that accountability for crimes is impossible.”
The tone was strikingly different in the statements by Uganda, Nigeria, and most notably, Burundi. The representative of Uganda noted that complementarity should head the agenda of the Court, and that “Uganda leads the way in making complementarity a reality.” He then called on members to understand that the “withdrawals are not mere masquerading” but reflect deep discontent among States. He maintained that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.” And that the withdrawals demonstrate that “fostering good will between the Court and Africa is not a luxury but an absolute necessity.”
About the visit of Al-Bashir to Uganda he indicated that the “invitation of Al-Bashir to Uganda was no different from the invitation to other heads of State, or the invitation by the UN Secretary General to Al-Bashir.” And that “Al-Bashir remains an important figure in any attempt to conduct a dialogue with Sudan. . . These engagements are important to advance peace, security, and stability in the area.” The Nigerian representative called “on the ICC to ensure that the principle of complementarity is assured and applied, and that the sovereignty of States will be respected.” In regards to its domestic conflict with Boko Haram, he argued: “we do not only fight against insurgency, but in a war against terrorists. Terrorist that are wickedly brutal.” An interesting argument from International Humanitarian Law point of view and the implication it has in regards to the definition of the hostilities as armed conflict or not.
Finally, Burundi’s representative carried a statement where she defended the withdrawal of Burundi from the Rome Statute. Interestingly, the speech lasted for 18 minutes, while the allocated time for each statement is five minutes. The main argument was that the withdrawal “was a decision that expresses the will of the people of Burundi”, which was repeated several times. Moreover, she argued against the actions of the Office of the Prosecutor: “Burundi felt deep concern over [the] lack of cooperation by the Office of the Prosecutor, especially in regards to individuals that are prosecuted by the national authorities of Burundi. The Office of the Prosecutor still invited them to its investigations, despite the fact that they are under investigation by the national authorities.” In addition, ” There was constant partisan, biased, language by the Prosecutor about the situation in Burundi, about what she called—quote on quote—third term”. Here the representative referred to the third term of presidency by Pierre Nkurunziza, which sparked the opposition protests in Burundi. The representative argued that the violence that ensued following these protests were not the making of the Burundi authorities, and that the third term of Nkurunziza does not constitute an undemocratic act: “During the crisis in April, Pierre Nkurunziza was selected as the candidate to the presidency and he ended up winning. Others also participated but lost, and they sit in the Parliament these days. Part of the radical opposition rejected the path of legality- they preferred violence as a way to express their demands. Having peaceful protests against the election is a right that is protected by our constitution. However, violent attacks against civilian and military targets are crimes that are punishable by our country. These very individuals [from the violent opposition] were invited by the ICC so they can continue to make false accusations against Burundi, while the government was absent.” The investigation by the Office of the Prosecutor, moreover, manifest an unequal treatment by the Prosecutor, as “Burundi and the African people noticed that she did not send warning to France and Belgium about the way in which they counter terrorist attacks against their own people. We find this to be condescending and unacceptable.” Therefore, “The Office of the Prosecutor acted as if the ICC is some kind of an overarching police force. The people of Burundi said no to this- a thousand times no.”