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Sidiki Kaba: Why I am not sighing with relief over ICC withdrawals yet

Journalists for Justice / 26 November 2016

 

By Thomas Verfuss, Journalists for Justice

Many diplomats, representatives of non-governmental organizations (NGOs) and other advocates of a fair, independent and efficient International Criminal Court (ICC) breathed a sigh of relief last week in The Hague when no new withdrawals were announced during the Assembly of States Parties. The ASP is the annual gathering of the now 124 countries worldwide that are members of the ICC system: a court of last resort that can become active when individual states fail to prosecute serious crimes of international concern, like genocide, war crimes and crimes against humanity.

In the run-up to the conference in The Hague in The Netherlands, the seat of the court, Burundi, South Africa and Gambia announced their intention to withdraw from the ICC. It was the first time that countries decided not to be bound any longer by the 1998 Rome Statute, the treaty that established the ICC. Other countries might follow, says Sidiki Kaba, the president of the ASP, in an interview with Journalists for Justice. In his position, he does not want to speculate on how many and which countries that may be.

But one thing is clear for Kaba, who is Minister of Justice in his home country, Senegal: there are Africans who feel “not listened to and humiliated” by the ICC which they perceive as “discriminatory and [serving up] selective justice”. All suspects wanted by the Europe-based court are African, and many Africans perceive the ICC as “justice by the white”, says Kaba, who, before he became a government minister, worked for many years as a human rights lawyer in the international league, FIDH.

The Office of the Prosecutor (OTP) of the ICC, led by Fatou Bensouda from Gambia, has been stressing over the years that it was African nations themselves that asked for the ICC to intervene, or it was the United Nations Security Council, where Africa is represented, that referred situations. Bensouda herself keeps reiterating that she works for African victims.

Kaba recalls that the current “world governance” system of the United Nations was designed in Yalta shortly before the end of the Second World War, where the prospective victorious powers designed a system to maintain peace and security in the world in the future and to avoid a “new Hitler”. In that UN system, five victorious powers of the Second World War have a veto in the Security Council, the powerful decision-making body of the UN. That leads to a perception of inequality and double standards. “Deux poids, deux mesures,” says the eloquent francophone jurist Kaba.

The UN Security Council referred two African states, Sudan and Libya, to the ICC for action, which led to arrest warrants against their respective leaders, Muammar Gaddafi and Omar el-Bashir. No such action has been taken with respect to atrocities in other countries like Syria, even though many think that President Bashar Hafez al Assad should stand trial in The Hague.

Russia, a friend of Assad’s, has refused to refer the Syria situation to the ICC. “Certain big powers don’t accept that certain people [can be] prosecuted,” Kaba says. The fairness of a UN system with veto powers for five countries only has been debated for decades, without result. Kaba has “no magic stick”  to change the current system. He stresses that victims in the countries the ICC can deal with now do need the court.

That is why he insists on a diplomatic dialogue to keep all current ICC members on board and avoid new withdrawals. The “exits” of Burundi, South Africa and Gambia have legal effect only after one year, and in the meantime, Kaba hopes to persuade the three governments to change their minds. He has created a multilateral “dialogue committee” to this end within the ASP, and he hopes that states supporting the Court will use all their influence in bilateral contacts.

“We need this Court,” Kaba says, and according to him, a mass withdrawal of African states would mean the end of the ICC.  A “frank, transparent and open dialogue” is needed during the coming months. But one principle is not negotiable, according to him, a fundamental principle that all states parties to the Rome Statute have subscribed to: there is no immunity for the highest political and military leaders.

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