African experts positive there will be no more ICC withdrawals

22 November 2016

The Hague – The Africa Group for Justice and Accountability has imagined a positive future for the International Criminal Court (ICC), and predicted that no further countries will withdraw.

It emerged from the independent group of experts who met on Monday night that Justice Minister Michael Masutha’s visit to the ICC in The Hague last week was an encouraging sign that nothing was set in stone.

The five of 12 group members in attendance presented a united front at their Assembly of States Parties side-event, titled “Imagining the future of International Criminal Justice”.

ICC president Silvia Fernández de Gurmendi sat in the front row.

She assured that the court was in good health, doing the work for which it was created and demonstrating it could deliver “high-quality justice”.

Confidence in ICC

If Fernández de Gurmendi was to be believed, there was still an overall confidence in the court.

“The difficulties that we have encountered have generated an extraordinary outpouring of support in the last week, demonstrating that support for the court and for justice and accountability remains strong.”

The recent withdrawals of South Africa, The Gambia, and Burundi initially sparked fears of a domino effect by other African state parties.

However, many had since shaken the notion of a united continental front by affirming the role of the court, or believing there was space as a member to fix issues.

South Africa’s sudden notice to withdraw from the founding treaty of the ICC initially saddened former Constitutional Court justice Richard Goldstone.

But he said he was less pessimistic after hearing Masutha speaking about his visit.

“It was a respectful meeting and a constructive meeting, perhaps not too optimistic, but at least there was a civil and respectful debate,” he told a full venue.

“As I understand it, the minister indicated that his timetable with a year to go, things could change.”

Willing to find a solution

The group was set up a year ago to advance justice and accountability measures on the continent, and was tasked with enhancing co-operation between Africa and the court.

Hassan Jallow, a Gambian lawyer and jurist, revealed they had offered their services as mediators for finding a resolution in light of the withdrawals.

“We can expect from now a better relationship,” he said, later adding “we stand here willing to find a solution”.

He believed the ICC’s situation would not get worse.

Botswana’s attorney general Athaliah Molokomme said justice and accountability would continue to dominate the continental discourse this year.

She was optimistic about the African State parties as long as dialogue remained open.

For dialogue to take place, there had to be respect, trust and mutual understanding, underlined Algerian diplomat Fatiha Serour.

Putting a positive spin on recent developments, she said: “The more concerns, and resistance and hesitation we have from some, the more resolve we have from others to actually pursue justice and ccountability in Africa and other continents.”

Unique legal challenges

Goldstone said South Africa’s case had raised “unusual and unique legal challenges,” which would be tested by the High Court in Johannesburg in December.

“What is being sought is an order compelling the South African government to withdraw their withdrawal and to give appropriate notice.”

However, he believed such an order would not result in government being thwarted in leaving the Rome Statute, but delay it at most.

This was in light of a bill before Parliament for the repeal of domestic legislation incorporating the provisions of the Rome Statute.

“I think we are in for a fairly extended period of debate in South Africa in respect of the courts and in respect of Parliament. There is a lot of water yet to flow under the bridge in the meantime.”

At worst, government would have to give a new notice of their intention, and their final withdrawal could be delayed to 2018, not next year.

Nigerian legal expert Dapo Akande said the direction the court was taking mattered more than where it was at present.

“We always have to keep working at it,” he said referring to various structural difficulties.

This article first appeared on News24, see here.