By Henning Melber*
Who benefits from withdrawal from the International Criminal Court as a response to the double standards and asymmetrical power relations in global politics? Leaving the ICC erodes international criminal jurisdiction and thereby the protection of people further, especially on a continent where no other local, regional or continental court with a similar mandate exists.
The International Criminal Court (ICC) was created to investigate and prosecute war crimes, crimes against humanity and genocide.
It can only bring individual perpetrators to task. A total of 124 countries ratified the Rome Statute, and brought the ICC into existence. 34 African states were the biggest continental bloc of signatories.
Who is accountable?
The ICC’s jurisdiction is limited to citizens of countries, which ratified the statute. None of the big powers were among these. In contrast, African governments took African perpetrators to task. As a result, the ICC almost exclusively investigated and prosecuted crimes on the continent.
But the ICC not only prosecuted rebel leaders. It also investigated the responsibility of heads of state in acts of mass violence, such as Sudanese president al-Bashir or Kenya’s Uhuru Kenyatta. This reinforced the feeling that the powerful in the world are the only ones setting the rules of the game.
After years of dissatisfaction, African states terminated their obligations to be held accountable. Burundi, South Africa and Gambia announced their withdrawal in October. Burundi and Gambia border on domestic policy towards so-called rogue states at a high cost to their own citizenry.
In contrast, Botswana, Ghana, Mali, Nigeria, Senegal, Tanzania and Zambia expressed their regrets over these withdrawals.
What about Namibia?
Tanzania seems to differ with President Hage Geingob since his state visit to Tanzania last year when he lobbied for the exit. In his speech at the AU Summit in August 2015, when he praised Robert Mugabe as role model, he lashed out against the ICC as an abomination, in which “you have the right to quit since it has ceased serving its intended purpose.”
On 23 November 2015, Namibia’s minister of information, Tjekero Tweya, announced that government had decided to withdraw from the ICC as part of a reformulation of its foreign policy.
But who benefits from such withdrawals as a response to the double standards and asymmetrical power relations in global politics?
Leaving the ICC erodes international criminal jurisdiction and thereby the protection of people further, especially on a continent where no other local, regional or continental court with a similar mandate exists. The SADC Tribunal as the only one of its kind was, with support of Namibia, closed when its judges ruled against the Zimbabwean government.
Being confronted with a highly flawed international system, where the rule of law all too often degenerates into the law of the rulers, should have different consequences. One should rather demand that only ICC member states have a say over its matters and decide if and when it executes its jurisdiction.
After all, EU member states (or those members of any other body, be it international, or even the local football club) would rightly so dismiss any influence or claim by non-members over their authority to decide and act.
This would mean that three of the permanent members of the United Nations Security Council (notably China, Russia and the USA) would disqualify to refer matters to the ICC. Meanwhile, four of the permanent members are currently accused of war crimes outside their territories, and should therefore be investigated by the ICC, if it had the power to do so.
Being unable to prosecute the imperialist aggressors of this world, however, should not let the al-Bashirs go off the hook.
International solidarity with whom?
Such advocacy would recognise and live up to the kind of international solidarity which had organised worldwide support for the resistance of people on the African continent against colonialism. Apartheid, for that matter, was declared by the United Nations a crime against humanity.
Such solidarity and a global governance system guided by normative frameworks rooted in the UN Charter and related conventions were, after all, not ideological humbug or completely ineffective.
Those states and policy makers who lower their levels of advocating human dignity and rights and compromise justice for the sake of convenience as a misnomer of solidarity with the wicked and evil have often forgotten that they earlier on were beneficiaries of a similar uncompromising siding with what is right in the face of wrong.
Not that this is missing from the official rhetoric. Namibia’s President stated on 29 September 2015 at the UN General Assembly: “Namibia is a child of international solidarity, midwifed by the United Nations. As Namibians, we are both grateful and proud of the support we received from the international community, through the United Nations system, during our struggle for independence.”
And he also claimed that “Africa has turned a new leaf, bidding farewell to the days of coups d’état and embracing electoral democracy. We, as Africans, through the African Union, have ostracised those who come to office through unlawful ways.”
Addressing the General Assembly on 21 September 2016, Geingob reiterated, “global solidarity is needed for us to effectively respond to the needs of our fellow human beings.”
The decisive question to answer, therefore, remains: solidarity with whom – the rotten apples in the basket, or the ordinary people suffering and victimised by those who do not care for their lives? – Which side are we on?
* Pambazuka.Henning Melber is director emeritus and senior adviser of the Dag Hammarskjöld Foundation and senior research associate of the Nordic Africa Institute, both in Uppsala, Sweden; a senior research fellow at the Institute of Commonwealth Studies/University of London and extraordinary professor at the University of Pretoria and the University of the Free State in Bloemfontein. He joined Swapo in 1974. This article previously appeared in The Namibian.