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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had withdrawn itself from the process of ratifying the Rome Statute internally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."
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