Tough love, threats and hope at ASP 15
By Ishmael Bundi
The just concluded fifteenth session of the Assembly of States Parties (ASP 15) couldn’t have come at a better time. With Burundi, South Africa and Gambia announcing that they would be quitting the ICC just weeks before, the annual meeting of states parties found the world’s first permanent international criminal tribunal in the throes of existential angst. The Court badly needed affirmations of support from member states in attendance at the ASP 15.
But, before the affirmations of support could start rolling in on day one, Russia – with the help of mainstream media outlets that really should know better - did its best to rain on the ICC’s parade.
Russia wasn’t in fact withdrawing from the Rome Statute but merely removing its signature from a treaty it had never ratified. As respected legal scholar Mark Kersten put it, Russia was going out of its way to let the ICC know its not a fan.
Luckily, the ICC didn’t have to dwell on Russia’s rejection for too long as it was soon inundated with affirmations of support from state parties.
The statements of support seemed to breathe new life into the ICC. Withdrawals be damned! Even South Africa, which in October shocked everyone by becoming the first nation to notify the UN Secretary General that it wanted to leave the ICC, signalled that it was not in a hurry to part ways with the Court just yet.
Please stay (or don’t)
As many observers noted, ASP 15 - like so many of the collective’s recent meetings - was dominated by discussions aimed at addressing the concerns of unhappy member states.
Evidently fed up with all the hand-holding, Prince Zeid bin Ra'ad, UN High Commissioner for Human Rights, in his keynote address to the plenary told ICC member states not to make any more compromises especially on Article 27 of the Rome Statute which prohibits immunities for heads of state and government officials. Zeid’s tough love response to the recent withdrawals is summed up in this sentence: “If the State Parties, who apparently have been masquerading in recent years as countries devoted to criminal accountability, want to leave, then they should leave.”
Njonjo Mue, the noted Kenyan human rights advocate, took a different tact in his speech to the plenary. According to Mue, it’s not possible to ignore the weight of history when trying to convince African states to stay put in the ICC.
“The ICC is not just struggling under the weight of a legacy of impunity on our continent; it is also struggling under the weight of history. There are strong sentiments among African peoples driven by legacies of racism, domination and exclusion. These sentiments are real and they cannot, and should not be wished away. Like Mandela, all Africans in this room have at one point or another in our lives been insulted, discriminated against or victimized because of the colour of our skin,’ he said.
Mue, however, said it’s possible to leverage this same history to keep the ICC family together:
“But when this has happened, when we have felt unfairly treated, we have not walked away from the problem, we have confronted it. We have been part of the solution to the myriad challenges confronting us as members of the human family and in so doing, we have often shown others the way. All African ICC member states must do the same.”
Then, a government rep attacked an activist
ASP 15 also had its share of menace courtesy of Kenya. Lawyer Jasper Mbiuki, a senior adviser to President Kenyatta, threatened vocal rights defender Gladwell Otieno at an ASP 15 side event on (wait for it) protecting human rights defenders.
The Kenyan official at the centre of the incident then accused the journalist who wrote about the threat of being involved in “a grand scheme to undermine the State”, a move straight out of the Kenyan government’s playbook on dealing with the ICC!
Perceptions and reality
Professor Mark A. Drumbl had some sage advice for the ICC on how to make sure it can deliver the goods. According to Drumbl, the Court should do a better job at limiting expectations.
Indeed, one area in which the ICC seems to constantly run up against the limits of what it can do is the issue of reparations for victims. While the Trust for Victims (TFV) is perpetually underfunded, at many of the side events, there was agreement that TFV could do more for victims. Some though are worried that too much fiddling with the TFV’s mandate could turn it into an aid agency.
Where is the money?
What’s for sure, despite all the affirmations of support for ICC at the ASP 15, is that states are not putting their money where their mouth is. ASP 15 approved an even lower budget than the one recommended by the Committee on Budget and Finance.
Though its easy to despair about the ICC’s future, at ASP 15 South Korea perhaps had the best piece of advice on why we should all be more patient with the Court.
Lead image: An ASP 15 session (ICC-CPI/Flickr)