ICC withdrawal a point of principle

Constitutional law experts are sceptical about the establishment of an African court of human rights to replace the International Criminal Court.

03 February 2017 | Justice

Namibia's intention to withdraw from the International Criminal Court (ICC) is based on the principle of self-respect and trust in robust local, regional and continental institutions.

Nevertheless, local experts and human rights advocates warn that such withdrawal could create a negative impression of Namibia's commitment to human rights.

The proposed withdrawal of African states from the world court has raised serious concerns about whether Africa is able to provide an effective and reliable alternative watchdog to replace the ICC.

The minister of international relations and cooperation, Netumbo Nandi-Ndaitwah, yesterday emphasised that once the African Court of Justice and Human Rights and other instruments were in place, African countries could address human rights violations.

External input from bodies such as the ICC would become redundant as these bodies, in addition to robust national institutions, could deal with the issues, the minister said.

Nandi-Ndaitwah said the recent resolution made by AU member states to collectively withdraw from the ICC was non-binding. It allowed states in favour of withdrawal to unite in their “unanimous understanding that Africa needs to have its own institutions to look at issues of impunity,” she said.

Nandi-Ndaitwah argued that the ICC was in fact a last-resort mechanism and could only become involved once internal mechanisms in an individual country had been exhausted.

She said since independence Namibia had and put in place strong and independent institutions.

If the need arose, these robust institutions could be reinforced by an African criminal court. “Then you don't really need to rely on the ICC,” she said.

“It is good to have more faith in your own institutions,” she said.

“You see countries like the United States have a lot of faith in their own institutions, and they are not members of the ICC, and nobody is making much noise about that.”

A number of experts say African countries should push for reforms of the flaws plaguing the ICC, instead of risking a human rights justice vacuum on the continent.

Law professor Nico Horn pointed out that “there is nothing on the ground to take the place of the ICC in Africa. No matter what the problems and shortcomings of the ICC, there is nothing else in Africa to deal with international crimes.”

Horn added that he is not “optimistic that Ecowas, SADC or any other regional grouping will be able to the ICC's place … my plea would be for Africa to contribute to the reform of the ICC, but not to abandon it.”

Legal Assistance Centre (LAC) director Toni Hancox said this week: “I think history has shown that countries have been loath to interfere in the internal affairs of other countries, given the shared history and struggle of many. In that case, an independent body like the ICC is indispensible.”

She said although there were concerns about the ICC, “it is better for us to advocate for change from within and not withdraw altogether.”

“I cannot see how, as a country that has a bill of rights entrenched in its constitution, we can fail to support the ICC in its attempts to address horrific crimes that fall within the purview of the Rome Statute,” she said.

Political analyst Professor Lesley Blaauw does not support Namibia's withdrawal from the ICC. “Indeed, it should be of concern to all of us that our government still subscribes to the old notion of 'groupthink' that completely defies logic,” he said.

Blaauw further questioned the proclamations by AU member states that the AU would take over the functions of the ICC.

“The record of the AU when it comes to the protection of human rights does not inspire confidence,” he said, adding that past dealings with countries notorious for human rights abuses indicated that the “AU is in fact very ineffective”.

He warned that a withdrawal may also “detract from the high regard that the international community has for Namibia as regards its human rights record.”

Institute for Public Policy Research executive director Graham Hopwood said it was unlikely that a withdrawal would take place in the short to medium term.

“The reality is that the AU is split on this issue,” he said.

“The agreed strategy is a non-binding decision and has no timeline, which means the issue is no longer seen as urgent. It will also take some years to activate Africa's own systems such as the African Court of Justice and Human Rights, which are ultimately seen as making the ICC redundant if they become effective bodies,” he explained.

Professor Blaauw said a mass withdrawal by AU member states would reflect negatively on the continent as a whole.

“What it says about African leaders and Africa in general, is that leaders are more important than ordinary citizens, and feeds into the notion that the protection of leaders invariably supersedes the protection and respect for ordinary Africans.”


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