Assembly of State Parties must reform the ICC

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DANN MWANGI

Article 112 (1) of the Rome Statute to the International Criminal Court establishes the Assembly of the State Parties (ASP) to the ICC. It consists of state parties to the ICC and observers from other states which have signed the Statute or the Final Act. Amongst other core duties that the ASP discharges, is to provide management oversight to the Presidency, the Prosecutor and the Registrar.

These functions of oversight over all the organs of the court are critical as the success or failure of the prosecutorial role of the ICC is largely determined by the institutional capacity and strength of all the court’s organs. So far, there are strong views by different actors that ICC has largely been unable to address impunity in the world due to lack of capacity and vision in the court.

Therefore, there is urgent need for ASP to initiate reforms in the court as if it fails to do so, the ICC will not succeed in addressing impunity. The current standoff between many African states and the ICC reinforces the need for ASP to initiate reforms in the court. The fact that African states form the largest continental bloc that has signed the Rome statute to the ICC reiterates why ASP must transform the court.

In this regard, many fundamental questions have faced the ICC and these forms the basis why ASP should reform the ICC. There have been valid accusations that ICC is only dwelling on international crimes that have been committed in African countries but chosen to ignore crimes that have occurred in other continents and this has led some, like the Ethiopian Prime Minister to accuse ICC of being in a “race-hunting mission”.

To put it succinctly, the former Chairman of African Union Commission, Jean Ping, has contended that while international crimes are being committed all over the world, for example in Iraq, Sri Lanka and Colombia, the ICC seems to focus only on Africa. He further states, “…We are not against the ICC … But we need to examine their manner of operating. There are double standards. There seems to be some bullying against Africa”.

The same questions have been asked by distinguished African scholars like Professor Mahmood Mamdani who has stated, “”… the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in Eastern Congo, effectively conferring impunity on them.”

In addition, the powers of the Office of Prosecutor to initiate prosecutions on its own have been a subject of intense debate and controversy. There has been a strong opposition against this power of the prosecutor to initiate prosecutions and this date backs to the diplomatic plenipotentiaries that led to the ICC’s statute.

Kenya was one of the countries that were against the powerful powers of the prosecutor as advised by the former Permanent Secretary for Foreign Affairs, Thuita Mwangi. And in a strange turn of events, Kenya is the first case where the prosecutor used this power to initiate investigations. Moreover, powerful countries like the US, which sits in the United Nations Security Council, were against the powers of the prosecutor to start investigations and this eventually made the US un-sign from the ICC statute.

Therefore, this powerful nature of the prosecutor’s office, which remains unchecked as stated by the US in its withdrawal from the ICC needs to be relooked at as the ASP meets later this month. So far, there has been blatant abuse of this power as seen in the Kenyan case and abuse of prosecutorial discretion as the prosecutor has refused to investigate situations that fall under the jurisdiction of the ICC. In fact, the selective application of this power has created a wedge between the African Union and ICC and this only hampers prosecution of crimes.

The Kenyan cases facing President Uhuru and his deputy have also brought the debate about the legality and constitutionality of the Rome Statute as it denies immunity of sitting Head of States despite that largely all states grant immunity to such officials. Overall, previous prosecutions of high level state officials have been done after they leave office as seen in Charles Taylor and Augustine Pinochet situations but the Kenyan cases have elicited the need for immunity of such officials as no country can be managed well when such individuals are facing such charges and have assumed office through a democratic process.

Therefore, as the ASP meets, there is need for it to use its powers to address these underlying issues as they will determine the success or failure of the ICC.

(Mwangi is a lawyer – [email protected])

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  • Qwani

    Can one really expect the ICC to reform?? Lets wait and see, but don’t hold your breath!

    • MuthiigiWaithekanyi9

      It will reform as it has little choice than to do so. The only question is whether it can reform to the extent that an ordinary citizen of Libya can take NATO to the Hague for the thousands of civillians who died in Tripoli during the Gadhafi regime change. Or a Syrian to take Assad or the Al Nusr Front to the Hague for the use of chemical weapons without inviting a veto from Russia or France.

  • Anduuru Aggrey

    While in agreement with your postulation-we may need to also relook at Africa, more specifically Kenyan motivations for pushing for reforms at the International Criminal Court. The signatories to the Rome Statute were not blind to the powers of the instruments, organs, and agents of the International Criminal Court; and that is why before the election of President Kenyatta and with it the implicit endorsement of the deputy president Ruto as a consequence thereof of that election; both Uhuru Kenyatta and William Ruto lobbied hard for their cases to be heard on the more equitable platform of the ICC.
    Surely it cannot be that following their election and the fastracking of their cases before the ICC by the Office of the Prosecutor, that now the ICC is applying selective justice to them. They wanted their cases heard at the Hague.
    All Western powers pushing for the cases to be heard before the Hague had their own misgivings about the jurisdiction of the ICC and sought instead to empower their local courts to hear cases brought against their citizens engaged in the international theater of geo politics. This is the reason why the US, Britain, and France are not signatory to the Rome Statute- they have put their own judicial mechanisms in order to try crimes against humanity. Whether these mechanisms are fair or not is not the crux of the matter today.
    The crux is…wasn’t Kenya granted this opportunity to form an local mechanism to try these cases and the offer flatly rejected by the Legislature, under the onus of Don’t be vague it is the Hague. Africans have to learn to stop s@%ting on their plates today then complaining about the smell tomorrow.

    • MuthiigiWaithekanyi9

      Factually inaccurate: Britain and France ARE signatories to the Rome Statute. It is the US, Russia and China that are not.
      Regarding the local mechanism, the MP’s who supported the Hague option did so for the same reason that ODM refused to challenge the 2007 elections in court: namely, that they did not trust the existing judiciary.

      • Anduuru Aggrey

        As regards the issue of accuracy of information I stand corrected on the membership of the ICC. However as to the issue of duplicity by the Pro Hague Dont be Vague campaigners who have now turned and gotten cold feet…the issue remains the same.

        The local judiciary still has not changed…even with the provisions of a new constitution.

        What is being questioned here is the integrity of the Pro Hague Dont be Vague campaigners. The insult to the justice system when they voted for the Hague process was real and not apparent, and rebuttal for a local tribunal was not the product of the ideological struggle between ODM and PNU as you may be trying to allude.

        The Pro Hague Dont be Vague campaigners just did what every body in a legal battle seeks to do and that is find a system that is sympathetic to their case and that is still the game plan.

  • Kwessi Pratt

    Currently there is no basis to reform ICC. Demands for reform are singularly being made to protect Kenyan suspects. More importantly, African despots have found voice against ICC simply because they are future ICC candidates, or fear all the same, they would be brought to account. Changes cant be effected purely on the whims of suspects or prospective suspects. And ICC didnt invite reforms because Kenyan individuals actually abused their own constitution to run for very offices, that they now want to enjoy international seal of protection! That chapter 6 of Kenya’s constitution barred them from running for these same same offices they want to be protected speaks volumes. Certainly push to have impunity reign supreme is underway.

    No wonder Africa is pointing crimes in other parts of the world to up its case! In other words, we are saying despots in Africa should not be punished untill cases else where are dealt with! Thats illogical and unworthy listening to. Genuine cases demand clear morals not just pointing fingers! African dictators are telling the world they should be left alone to continue killing Africans. Thats not acceptable at all …. at all!

    In countries like Iraq, these dictators are not telling us a whole leadership was brought to account. Most of the guys were hanged and others are serving long long prison terms! The remaining violence in that country is essentially guerrilla warfare. And untill leaders involved are identified, there is little the world can do. In Sri lanka, bitter civil war was won by government. It later emerged crimes against humanity might have been committed. Investigations are already underway. And once its established indeed unusual happened, swift indictments would certainly follow. Therefore, no African cases are anywhere close to these other places mentioned.

    Dictators in Africa need to stop killing their people before they shout race hunt. Is it a coincidence ruthless blood thirsty dictators are mostly found in Africa? This is the question that needs to be addressed without pointing fingers! Why compare your crimes with others if you deserve to be listened to? We should be pointing out our innocence to demand reforms. That way, no one would accuse us of double standards. In any case, once president and his deputy are removed from ICC search light, the court would lose its very purpose! Killings are supposed to be stopped before or when they start. However, if dictators are granted immunity in course of their atrocities, they might as well kill all their respective citizens! They might elect to leave only their tribesmen to run the show and then, commit suicide before they face justice!!!!

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