Remain: The importance of the ICC

18Nov 2016
The Guardian Reporter
The Guardian
Commentary
Remain: The importance of the ICC

THE Legal Assistance Centre was part of a coalition which encouraged Namibia and other countries to ratify the Rome Statute that created the International Criminal Court (the "ICC").

Namibia did so in June 2002, and we were proud to say that as a country, we believed in accountability, and that what happens in Namibia matters to the rest of the world - and vice versa.

We were not isolated, and we too would stand in solidarity with our brothers and sisters who are victims of genocide, crimes against humanity and war crimes. The ICC only prosecutes in respect of these three crimes. It does not take away a country's right to prosecute these crimes, and will only take on this duty when a country cannot or will not prosecute these serious international crimes.

Given the nature of the crimes that fall within the ICC's mandate, we find it difficult to understand why our government is planning to withdraw from the court. Some of the reasons were explained by the minister of international relations and cooperation earlier this year.

It was contended that there is no longer a need for the ICC since Namibia's judicial institutions are now strengthened and able to deal with crimes of this nature. The response to that would be that this may be the case right now, but the future may be very different.
As mentioned, the ICC is a court of last resort, and will only be required to prosecute in a situation where our courts cannot or will not do so.

I believe that to be a very reassuring message to the people of Namibia. Belonging to the ICC essentially means our government is saying that they take these crimes so seriously that they are willing to allow an international body to investigate them, if need be.

Another concern for government is the fact that the current heads of state can be prosecuted. The argument is that they are elected by the people, and any investigation should only take place after their terms of office have expired.

With the greatest of respect, a head of state accused of such horrific crimes is not following the mandate of the electorate and really has no business leading the country. In addition, it must be remembered that it is not only heads of state who can be prosecuted, but any national. So why the concern only about heads of state?

Another reported concern that government appears to have is that the ICC is interfering with domestic affairs. My response to that concern would be that human rights abuses are never a domestic affair. The words say it all - human rights belong to all humans - whatever their nationality and geographical location.

Burundi, South Africa and The Gambia have announced that they intend to withdraw from the ICC. What is interesting to note, however, is that each of these announcements were preceded by some form of engagement with the ICC that placed these countries in an unflattering light.

Why then is Namibia so eager to join this group when many countries, including African ICC member countries, remain vocal supporters of the international body? As the people who are protected by the ICC, is it not perhaps within the remit of the ordinary Namibian to decide whether Namibia should align itself with countries that put forward a message of transparency and respect for human rights, or with countries that seek to protect abusers of human rights? I know which I would choose.

It is furthermore important for Namibia to remain party to the ICC as an example to other countries. The hope is that Namibia will never need the ICC to address human rights abuses within Namibia, but by staying, we are sending an unequivocal message to the international community that our country supports justice and condemns genocide, crimes against humanity and war crimes.

We would suggest that the best way to encourage a process to change for the better and to ensure that it truly fulfils its mandate as a tool to fight impunity is not to withdraw from the ICC, but to remain within its fold and advocate reforms from within in order to enhance its creditability. Using the processes offered by the ICC would also be a way of strengthening its possibilities.

The Elders - an independent group of global leaders working together for peace and human rights, founded by Nelson Mandela - has also recently urged African nations to remain in, and indeed deepen their engagement with, the ICC.

The Legal Assistance Centre therefore urges the Cabinet to reconsider their stance and to reaffirm Namibia's commitment to making the ICC an institution of empowerment and protection for our fellow Africans and indeed for people throughout the world. Namibia deserves no less.

The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes.

The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force.

The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 124 states which are party to the Rome Statute and therefore members of the ICC.

However, Burundi, South Africa, and Gambia have given formal notice that they will withdraw from the Rome Statute.

The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division.

The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office.

The Office of the Prosecutor has opened ten official investigations and is also conducting an additional nine preliminary examinations.

Thus far, 39 individuals (all Africans) have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, the late Libyan leader Muammar Gaddafi, and Ivorian president Laurent Gbagbo.

- Toni Hancox is director of the Legal Assistance Centre