2017 Year in Review - The International Criminal Court

By Erika Suhr

Picture: Globe License: Public Domain

A Rocky Start

At the start of 2017, the International Criminal Court (ICC) seemed to be experiencing an existential moment. Russia had withdrawn itself from the process of ratifying the Rome Statute internally in protest of the ICC’s ruling that Russia’s 2014 takeover of the Crimea peninsula had been an armed conflict between it and Ukraine, making the annexation fall under the court’s jurisdiction. In January, a non-binding African Union resolution called for its members to withdraw en masse from the ICC, with some countries arguing that the ICC, beyond subverting their sovereignty, disproportionately targets African countries. The African Union supports instead, a regionalization of international law, where there would be a war crimes court, specifically devoted to Africa. Opponents worry about the independence of such a court, and that the risk of violations of war crimes in African states would rise as a result. The Foreign Minister of Nigeria noted the vital role that the ICC plays in holding leaders accountable, and stated that Senegal, Cape Verde, and other countries would speak out against the resolution to withdraw.

Burundi Withdrawal

Burundi, The Gambia, and South Africa all decided to withdraw from the ICC, but ultimately, only Burundi carried out its threat. The Gambia, under new leadership, announced its reversal of the decision to withdraw on state television, citing its “commitment to the principles enshrined in the Rome Statue of the International Criminal Court”. South Africa also revoked its decision to withdraw from the ICC, citing a recent court ruling that declared the withdrawal “unconstitutional and invalid.”
On October 27, 2017 Burundi, a year after declaring its intentions, became the first country to withdraw from the International Criminal Court.  The timing of Burundi’s withdrawal coincides with a report released by the United Nations Commission of Inquiry. The report recommended that a criminal investigation on crimes committed in Burundi be initiated in response to evidence of torture, sexual violence, extrajudicial killings, disappearances, and illegitimate arrests and detentions sponsored by the regime of Burundi’s president, Pierre Nkurunziza.

A Reinvigorated Court

Perhaps as a response to the criticism of the African Union and others, the ICC’s prosecutor has publicized a shift away from Africa towards other regions. She announced that she is opening preliminary investigations into crimes perpetuated in the Philippines, Afghanistan, and Venezuela. The Philippines probe will focus on allegations reaching back to July of 2016, relating to the government’s war on drugs, which has since killed thousands of people, many under dubious circumstances and justifications. The Venezuelan probe will likewise focus on government and police forces, in that case, that the government forces “frequently used excessive force to disperse and put down demonstrations,” and tortured and abused members of the opposition who were unlawfully detained by the government, indefinitely.

Most controversially, the prosecutor called upon the court to open an investigation into war crimes and crimes against humanity in Afghanistan. The scope of that investigation could encompass U.S. troops. No specific parties or events have been named, but a report released by the prosecutor’s office says that there is a reasonable basis to believe that the following crimes have been committed:
  • "Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;
  • "War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security), and the Afghan National Police;
  • "War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014."