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.
Not question about icc but question about about how lungu is trying to get away from facing crimes against humanity cases.
Then OVAL HEAD is very much guity. Namwala saga.
Good article, short and precise. I pick out that whether we decide to stay or pull out, we will still be part of ICC by virture of being a member of the UN. So lets spend the two million kwacha on something productive for the country and not this ICC debate
Nice one Mr Jere..
nice article.it has been long from the time i ready something sensible….
I CONCUR WITH YOU JANE AND THANKS FOR SHARING THIS INFO MY FELLOW LEARNED COLLEAGUE
Mr.Jere has explained very well in this article. Who has committed war crimes here? Who has committed genocide here? Who has committed crimes against humanity in this country? So it’s only those who have committed these crimes who are afraid of leaving the ICC.As Jere has clearly outlined, whether we pull out or not, those who will be found guilty of committing the said crimes will be punished. I read in the Mast newspaper yesterday that the K2m being spent on the consultative process is ‘nothing’ as it is the cost of a landcruiser V8!For us poor people if we are given such an amount of money our future is set. We do not even have to work for the rest of our lives.For some elite class K2m is ‘just the cost of a vehicle’.
Mr Jere thumbs up,that is what we want,talking sense and not wasting,WAR CRIMES, GENOCIDE AND CRIME AGAINST HUMANITY. The ICC has NO time for petty political squabbles and election petitions.Knowledge is power,people need to get education to stop the nonsense
Mr Jere is right and in fact we should remain with the status quo so that even some major opposition party leaders can be taken to the ICC for the Namwala cases of brutality after August 2016 election just like the Congolese opposition leader Bemba is facing currently
What Jere said is nothing new becoz we already know that. What Jere should have done is to inform his former boss who now happens to be Chief Adviser to the Illegitimate Lungu who together with RB are busy committing crimes against humanity using the Notorious ZPS. Jere should have told RB , Lungu and his fellow criminals to stop stealing Elections and refusing to hear the Petition. Both Lungu and RB are Criminals who have committed crimes against humanity. Jere is an accomplice and should go to Jere together with Illegitimate Lungu and RB.
What is K2 million shared by the Zambia population? If one man decided to pull out without spending anything HH would have called him a dictator. When the same person asks the people to decide he is considered wasteful. Muntu alibe chabwino.
That would be ZMW 0.3333 each less immigrants.
Sorry ZMW 0.13333 each.
K2million would buy 31,000 doses of 20mgs of Heparin that UTH currently doesn’t have but desperately needs.
That is what is known as Informed analysis. Not Dr. Chishimba who is sued for a Chinese Tender corruption and goes on ranting about Maize Gate. Straight forward and well articulated article on ICC. No one can fail to understand such reasoning pattern. Thumbs Up Jere
This tells us that the exercise the govt is carrying out on consultations is not necessary and an expensive venture. How did lawyer Lungu and his AG miss? May it was job creation?
Given Lubinda should step down for misleading the nation and for the wastage and open attempt to plunder national resources! It is very clear that these chaps want to line their pockets in the name of ICC! What are they afraid of? This desperation confirms that these PF minions have a lot to hide! Only time will tell. There is nothing that is hidden that will not be known! Good luck!
Mr. Dickson Jere started off very well, but lost the plot and contradicted / misled himself when he tried to indirectly exculpate EC Lungu’s questionable Presidency. Analyse this:-
D Jere says “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.”
Now, according to International Crimes Database ICD it says “Fundamentally, CRIMES AGAINST HUMANITY are inhumane acts – which would constitute crimes in most of the world’s national criminal law systems – committed as part of a widespread or systematic attack against civilians.”
Its not Rocket Science, every well-meaning adult can tell that EC Lungu has been conducting…
Cont’d … conducted systematic attacks against UPND.
Mr D Jere, be objective.
What we will save by pulling out are subscription fees. Most UN agencies are being questioned because of the apparent bias in dealing with issues. The US under Clinton used NATO to bomb Bosnia-Herzegovina because he knew Russia was going to veto such a resolution. The powerful always have a way of doing things, exactly the same reason the Non Aligned Movement was founded. Today, Rodrigo Duterte wants to leave the UN because it has responded to Filipino interests, and he wants China, Latin America and Africa to found another organisation that will be responsive to their aspirations. Why should 5 nations decide on important issues for the rest of the world? Even Mugabe has questioned why they should meet in New York every year give speeches which no one listens to?
Insert has not responded to Filipino interests
Counsel , how does the issue of election petition come in? Let the matter be handled by parties’ lawyers. Your LLM in international law does not make you superior to others lawyers. Otherwise , another lawyer may said he has Doctor of Law in international law and express a different opinion from you.
Above all , LAZ ethics forbids to offer free advice. As a senior lawyer please avoid being political. Let us raise the bar for the law profession.
a country which is not a member of the ICC cannot refer or complain the ICC unless the UN passes a resolution and recommend to ICC to prosecute war criminals. the difference is not the same. u can be a member of the UN and not a member of ICC. if u are not a member u cant complain to expose your citizens to ICC like the case of Charles. the only way your citizens can be prosecuted is by UN resolution. Mr Jere, with due respect, why cant UN pass a resolution to prosecute George Bush? this is because the difference u stated is not the same. pulling out of ICC does not come to the same with even if u are in UN membership.
well articulated mr.jere, short and full of substance.Mr. president please quickly withdraw the k2 million kwacha, let it be spent for something else. thanks.
Dear Mr. Jere, to present an argument you do not need to tell us about your Master degree study. Just present your argument as is. And please submit your views to the on-going consultation on the ICC Zambia is undertaking. The AU for your information has lawyers who may want to know could pass for your lecturers in your Masters study. Whats wrong with consultations? I noticed that since PF did not choose you as candidate for Matero, you are carrying an axe to chop with. Tekanyani baba! Which started first the ICC or the UN? Why can’t a country belong to one body and not the other? Baba maboza muleke! Where I to grade you Mr. Jere for the above, I would give you a D minus (D-). Did you show your paper to Prof. Mvunga (your Boss) before publishing?
Dear Mr. Jere, your argument is muddled up. It is not clear what you want to say or is recommending. Or wasn’t that your point? Have you read the statutes of the ICC? Is there a provision under its statutes for how countries can withdraw from the ICC? Surely the lawyers that prepared the ICC charter could have known that there will be countries that will be both members of the UN and the ICC and there will also be some that will only be members of one? If the ICC is not working well, member states are at liberty to review it. The consultations taking place will reveal some issues that Zambia will take back to the AU or even the ICC. The country is within its rights to consult. That’s how mature countries conduct business, Mr. Jere. If you have some issues on these consultations, take…
This is what we call pounding the book,not some people I have heard to say there have a degree in economics?the only explanation there knew is we are going to turn around the economy.You Ask them to explain.youvan hardly understand there explanations.But when it comes to insults,there are number one
It could have been better for Jere to start by telling us that during his primary school in Grade One, the teacher taught him that 1 + 1=2. Fact! It is only in Zambia where people introduce themselves as ‘ I am DR so so so!!! or I am PROFESSOR so and so, elsewhere they DO NOT and if you did that in the States, you will stand out for sure!
Now getting back to the issue, nobody talked about the ICC solving election problems, BUT they can deal with crimes committed after disputed elections when people who show dissenting views are killed. We have seen people killed in Burundi, Kenya, Gambia and Ivory Coast and people have been reported to ICC for such crimes. Jere, please not trivialize the issue. Not elections but the aftermath of elections!!!
Wether we leave the ICC or not,we can still be prosecuted by virtue of being members of the UN.So this issue is a no brainer. So ba united petition for national delayment can take it easy.