By Dickson Jere
During my study for a Masters of Laws Degree (LLM) in Human Rights, one of the courses I took was International Criminal Law. This entailed studying the background, structure and operation of the International Criminal Court (ICC). One key aspect that I learnt with much amusement was that once you are a member of the United Nations (UN), you cannot escape the jurisdiction of the ICC. This is because the UN Security Council still has a mandate to refer cases of serious crimes to the ICC even from countries that have either pulled out or are not members of the ICC.
This is made possible by Article 13(b) of the Rome Statute and the UN Security Council using provisions of Chapter VII of the UN Charter. This is the reason the Sudanese President Omar Bashir has been issued with the arrest warrant by the ICC following the UN Security Council Resolution 1593 of March 2005. The Libya human rights abuses were also referred to ICC by the Security Council. Both Sudan and Libya are not members of the ICC.
But again the arrest warrants issued by the ICC have been ignored by the same UN member States. President Bashir has been to South Africa, Malawi and Chad without any attempt to arrest him by the respective governments.
Although of interest, the UN Security Council has powers to suspend any prosecution at the ICC under Article 16 of the Rome Statute, which is sometimes called “deferral”.
But then a question begs! Under international law, precisely the “Vienna Convention on the Law of Treaties” States cannot to be bound by obligations that they did not consent. So why should ICC be an exceptional case?
Do you know that out of the five permanent members of the UN Security Council, three are not members of the ICC? So why should powerful countries that do not subscribe to the ICC refer cases of other countries to the same ICC? Food for thought for now.
By the way, the. ICC does not deal with election petition or petty political squabbles in a member State. It’s mandate broadly deals with three crimes, namely, (1) war crimes, (2) genocide and (3) crimes against humanity.
So I am not sure what the African Union (AU) ultimate goal is to ask member states to consult whether to pull out or not because either way one cannot escape the ICC route so long as you are in UN.
Anyway, I was just remembering my class notes in view of the ongoing consultation in Zambia whether we should stay in ICC or not. As they say, “the difference is the same” on this question.
The author is a Lawyer based in Lusaka. He once served as Special Assistant for Press and Public Relations to former President Rupiah Banda.