Withdrawals from the Rome Statute: Continuing the saga of institutional (il)legitimacy

Francis Tom Temprosa

LLM Candidate & Clyde Alton DeWitt Fellow

The recent series of expressions to withdraw from the Rome Statute, including Burundi’s successful withdrawal,[i] is not surprising to legal scholars who have closely watched events unfolding before the International Criminal Court (ICC). Prosecutions at the ICC have raised deeper questions about complementarity, and whether the ICC is biased in its selection of situations to investigate and individuals to indict.[ii] Under a neo-colonialist critique of the court, many African leaders and intellectuals have argued that the ICC is a Western imperialist attack especially on Africans.[iii] Yet, the ICC has operated against a backdrop of non-ratification of signatures to the treaty and looming intentions to withdraw for many years now. In 2002, U.S. President George W. Bush notified UN Secretary-General Kofi Annan that the United States had “no legal obligations arising from its signature” made during Clinton’s time.[iv] Russia, a signatory to the Statute, announced in November 2016 that it will distance itself from its signature after the court criticized it for actions in Crimea. Russia reasoned that the ICC “failed to meet the expectations to become a truly independent, authoritative international tribunal.”[v] But this recent spate of intentions to withdraw brings concerns about the legitimacy of the court to a whole new level. First, states parties to the treaty, not mere signatories to it, had initiated steps to dissociate from the entire enterprise that is the ICC. Last year, Burundi, South Africa, and Gambia announced intentions to withdraw from the treaty. South Africa’s withdrawal was only prevented by its High Court, ruling that the national executive could not unilaterally withdraw from the treaty without parliament’s prior approval.[vi] Gambia’s new President Adama Barrow, meanwhile, reversed his predecessor’s withdrawal from the Statute.[vii] Second, a regional bloc of states has instituted the so-called “collective withdrawal” strategy from the ICC. In February 2017, the African Union (AU) adopted the design, aiming, among others, to “provide [its] member states with a holistic approach, analysis and implications of initiating the withdrawal provision under the Rome Statute in accordance with the constitutional provisions of African States Parties.”[viii] The strategy serves as guidance to African states that wish to reassess relationships with the ICC.[ix] Previously, the AU had issued a resolution only condemning the ICC’s perceived advancement of a Western ideology of intervention in Africa.[x] The strategy, indeed, comes as an unprecedented next move. But, what shall we make out of this strategy? Will all the AU states really break away from the ICC? One view holds that the strategy may symbolize the high-water mark of AU opposition to the ICC. While the prospect of collective withdrawal has been in the works for some time, it appears to be a “politically benign and legally confused form of collective resistance.”[xi] This is because the document recognizes, at the same time that it envisages collective withdrawal, that the decision to withdraw rests on each state party, and provisions of the Rome Statute and the Vienna Convention on the Law of Treaties respect individual state agency.[xii] Another view maintains that the resolution adopting the strategy is weak and non-binding, further weakened by reservations from eight African states. Although its title gives an impression of united intent to abandon the ICC, its objectives actually reassert a resolve to list possible reforms for the Rome Statute and the ICC. Some African states have been also concerned over the AU’s attempts to tell them what they have to do as regards their status vis-à-vis the court.[xiii] It is true that the question of the legality or illegality of the withdrawals turns our attention to an exploration of the Rome Statute. To be effective, as Aust states, withdrawal may take place only as a result of the application of the relevant treaty provisions;[xiv] in this case, articles 127 and 121(6) of the Statute. A party may also withdraw, at any time, upon the consent of all the parties after consultation.[xv] However, one should also be aware that the “collective withdrawal,” regardless of its efficacy in law, is viewed by the AU as a mechanism to change what it perceives are power inequalities attendant to the court. Arguably, collective action by states can challenge international legal rules that are “unfair and objurgate international institutions that enforce those rules.”[xvi] It is, thus, animated by a perception of inequality, and the strategy is taken as a tool for leverage, an instrumentalism. This debate is far from over, and more developments are sure to unfold which will clarify the matter, and show us what lies ahead. What we know, though, is that issues of legitimacy have remained open. For instance, the court is faced with issues of fractures in its past. From its birth, the ICC has been suffering from concerns over an aspect of constitutive legitimacy, whether its estalishment was with the true input and consent of states. It was born with the heavy participation of the Security Council, and not most states.[xvii] David Scheffer, the first U.S. Ambassador-at-Large for War Crimes Issues, recounts that backroom negotiations of the 1998 Rome Diplomatic Conference on the ICC have been at times sluggish, and Hisashi Owada did have to sometimes create a small package of common denominators to attract general agreement.[xviii] Also, the way in which the court conducts prosecutions and indictments, with the alleged bias against African states, might call into question its procedural legitimacy, in the sense that Rawls espouses distributive justice as treating like cases alike and affording all parties the liberty of putting their cases forward.[xix] From all indications, therefore, the court is facing a moment of clarity on what it wants to accomplish in the future. It may view this as an opportunity for critical reforms, although it ought to be mindful of article 121(6) of the Statute, which may create reasons for mass withdrawals from the treaty in the wake of less-than-unanimous amendments to the Statute.[xx] Despite the allegations especially levelled against the ICC, the truth however is that no court is immune from concerns of legitimacy. Even domestic courts confront such issues. Institutional legitimacy is perhaps the most important political capital that a court possesses.[xxi] Since legitimacy is loosely understood as the normative belief that a rule or institution ought to be obeyed,[xxii] all courts may naturally desire that their judgments be obeyed, even by states parties who are keen on leaving or dissociating from them.

[i] U.N. Secretary-General, Depositary Notification, Rome Statute of the International Criminal Court: Burundi: Withdrawal (Oct. 27, 2016), https://treaties.un.org/doc/Publication/CN/2016/CN.805.2016-Eng.pdf. [ii] Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law Norms, Actors, Process: A Problem-Oriented Approach 536 (4th ed. 2015). [iii] Siegmar Schmidt, Soft Power or Neo-colonialist Power?, 4(3) Rev. Eur. Stud. 100, 105 (2012), http://dx.doi.org/10.5539/res.v4n3p100. [iv] Frank Hoffmeister, Article 13: Consent to Be Bound by a Treaty Expressed by Signature, in Vienna Convention on the Law of Treaties: A Commentary 163, 171-172 (Oliver Dörr & Kirsten Schmalenbach eds., 2012). [v] Sheena McKenzie, Russia Quits International Criminal Court, CNN (Nov. 17, 2016, 3:25 AM), http://www.cnn.com/2016/11/16/world/russia-quits-international-criminal-court/. See also Philippines’ Duterte Says May Follow Russia’s Withdrawal from ‘Useless’ ICC, Reuters (Nov. 17, 2016, 11:54 AM), http://www.reuters.com/article/us-philippines-duterte-icc-idUSKBN13C0GS (adding that Philippine President Duterte may follow Russia’s move, although the Philippines is a state party to the treaty, and not merely a signatory). [vi] See Democratic All. v. Minister of Int’l Relations and Cooperation 2017 (CC) (S. Afr.), http://www.saflii.org/za/cases/ZAGPPHC/2017/53.pdf. [vii] Merrit Kennedy, Under New Leader, Gambia Cancels Withdrawal from International Criminal Court, NPR (Feb. 14, 2017, 5:23 PM), http://www.npr.org/sections/thetwo-way/2017/02/14/515219467/under-new-leader-gambia-cancels-withdrawal-from-international-criminal-court. [viii] Afr. Union, Withdrawal Strategy Document, ¶ 9 (Jan. 12, 2017), https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. [ix] Patryk I. Labuda, The African Union’s Collective Withdrawal from the ICC: Does Bad Law make for Good Politics?, EJIL: Talk! (Feb. 15, 2017), https://www.ejiltalk.org/the-african-unions-collective-withdrawal-from-the-icc-does-bad-law-make-for-good-politics/. [x] Dunoff et al., supra note 2. [xi] Labuda, supra note 9. [xii] Id. [xiii] Mark Kersten, Not All It’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy,” Justice in Conflict (Feb. 6, 2017), https://justiceinconflict.org/2017/02/06/not-all-its-cracked-up-to-be-the-african-unions-icc-withdrawal-strategy/. [xiv] Anthony Aust, Modern Treaty Law and Practice 245 (3d ed. 2013) (noting that Article 5 of the Vienna Convention also states that it shall apply to constituent instruments of international organizations). [xv] Vienna Convention on the Law of Treaties, art. 54(b), opened for signature May 23, 1969, 1155 U.N.T.S. 331. [xvi] Afr. Union, supra note 8, ¶¶ 19, 21 (admitting that the concept is not yet recognized by international law; but noting the possibility of further research on “the potential emergence of a new norm of customary international law”). [xvii] Yvonne McDermott & Wedad Elmaalul, Legitimacy, in Research Handbook on International Courts and Tribunals 229, 229, 231 (William A. Schabas & Shannonbrooke Murphy eds., 2017). [xviii] David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 210 (2012). [xix] McDermott & Elmaalul, supra note 17, at 236. Note that the prosecutor at the ICC had come out in defense of the court, arguing that cases from outside Africa are forthcoming and there is no selectivity. David Smith, New Chief Prosecutor Defends International Criminal Court, Guardian (May 23, 2012, 9:12 AM), https://www.theguardian.com/law/2012/may/23/chief-prosecutor-international-criminal-court. [xx] This seems to resemble a withdrawal clause of “indefinite duration with conditional right to withdraw.” Aust viewed art. X(1) of the Nuclear Non-Proliferation Treaty 1968, as one of this type that enabled North Korea to withdraw from the treaty, citing U.S. military exercises and the conduct of the International Atomic Energy Agency (IAEA) as reasons to withdraw from the treaty. Aust, supra note 14, at 249. [xxi] See James L. Gibson, Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns, 102(1) Am. Pol. Sci. Rev. 59, 59 (2008). [xxii] Alan Boyle & Christine Chinkin, The Making of International Law 24 (2007).