Why the ICC is right about Bashir

There has been much critical analysis about Sudanese President Omar al-Bashir’s “escape” from South Africa and from arrest by the South African government and courts on behalf of the International Criminal Court (ICC).

Almost every critique, however, supports President Zuma’s view that the ICC is biased against Africa and consequently South Africa should withdraw its membership. It almost seems a necessary affirmation of the authors’ Africanist credentials particularly as the commentator vigorously attacks the South African government’s actions or inaction.

Is the criticism of the ICC qualitative or quantitative? The latter is based on the fact that the 9 current cases being prosecuted are all from African countries.

The ICC has the jurisdiction to prosecute individuals for the crimes of genocide, crimes against humanity, and war crimes. The ICC complements existing national judicial systems and it may only exercise its jurisdiction when certain conditions are met – when national courts are unwilling or unable to prosecute, or when the United Nations Security Council or individual states refer investigations to the ICC.

This principle of national prosecution applies regardless of the outcome of national proceedings. If an investigation is closed without any criminal charges being filed or, if the accused is acquitted by a national court, the ICC will not prosecute. However, it must be satisfied that the national proceedings were legitimate. So it is by no means inevitable that the ICC alone will prosecute.

The ICC's foundational and governing document is the multilateral treaty of the Rome Statute. States that ratify the Statute become member states of the ICC. Currently, there are  123 state members: all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. A further 31 countries have signed but not ratified the Statute.

The Prosecutor has opened nine official investigations and is conducting an additional nine preliminary examinations. So far, 36 individuals have been indicted, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, and Ivorian president Laurent Gbagbo.

On 17 July 1998, the Statute was adopted by 120 votes to 7, with 21 countries abstaining. Those that voted against it were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. Following 60 ratifications, the Statute entered into force on 1 July 2002 and the Court was formally established.

There are three jurisdictional requirements that must be met before a case may begin against an individual. The requirements are subject-matter jurisdiction (what acts constitute crimes), territorial or personal jurisdiction (where the crimes were committed or who committed them), and temporal jurisdiction (when the crimes were committed).

Jurisdiction depends on

- the accused being a national of a State Party or a State otherwise accepting the jurisdiction of the Court;

- the crime had to have taken place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court;

- the Security Council referring the situation to the ICC, irrespective of the nationality of the accused or the location of the crime.

Crucially the Court will only prosecute an individual if states are unwilling or unable to prosecute.

Proceedings will only be initiated if a crime is of "sufficient gravity to justify further action by the Court".

The Prosecutor will initiate an investigation unless there are "substantial reasons to believe that an investigation would not serve the interests of justice" when "[t]aking into account the gravity of the crime and the interests of victims".

Even if an investigation has been initiated, the facts warrant a prosecution and there are no other admissibility issues, the Prosecutor must determine whether a prosecution would serve the interests of justice "taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".

Although the ICC is legally independent from the United Nations, the Statute grants certain powers to the  Security Council, which limits its functional independence. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction. Examples have included Darfur and Libya as neither the Sudan nor Libya are state parties.

There are 9 situations currently being investigated: the Democratic Republic of Congo, Mali, Sudan (Darfur), Uganda, Central African Republic (2), Côte d’Ivoire, Kenya and Libya. There are preliminary investigations for Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine.

Self-referrals include those by Uganda, the Central African Republic and the Democratic Republic of Congo. The first ICC-initiated investigation was into the election violence in Kenya in 2007. Kenya is a party state. Côte d’Ivoire accepted the jurisdiction of the ICC although it had not ratified it at the time. The Sudan and Libya were unanimous referrals by the Security Council. Mali and Uganda are member states.

It is not as simple as saying that the numbers go against Africa, therefore, there is bias.

There have also been objections to the absence of some states from the ICC’s membership. Membership is voluntary and it is up to the members to persuade the non-members to join, not castigate the ICC for them not being members.

Government spokesmen have recently stated that our diplomatic initiatives centre around the AU first and foremost. Does this mean that our government’s action revolve around protecting African leadership irrespective of the probity of that leadership? And irrespective of its international and local legal obligations? Is this the real basis for its criticism of and threats of withdrawal from the ICC?

There has been much nervousness about the government’s diminishing respect for the Rule of Law. The people of South Africa may not be comfortable with the withdrawal of safeguard of the ICC.

The government needs to explain what the ICC is doing wrong qualitatively in carrying out its mandate rather than pointing to whom is being prosecuted, as justification for withdrawal.

Some people may not be prosecuted because of their allies on the Security Council or because their countries are not signatories. This does not derogate from choosing to be a member of the ICC, carrying out its legal obligations to the ICC, nor absolve members from examining the extensive horrors perpetrated against ordinary people on this continent.

Sara Gon is an IRR Policy Fellow.