As the International Criminal Court struggles to quell a mutiny by its African members, the Canadian government has begun a quiet backroom effort to find a compromise with the court’s most powerful African opponent.
As one of the founding members of the war-crimes court, Canada is seeking to placate the African countries that have threatened to quit the court. That strategy is focused on South Africa, the biggest country to announce its withdrawal from the court in recent months.
In private meetings in South Africa last week, Canadian Justice Minister Jody Wilson-Raybould heard complaints about the ICC and promised to seek ways to address them. In an interview, she told The Globe and Mail that she plans to discuss South Africa’s concerns with her colleague, Foreign Affairs Minister Chrystia Freeland. Canada wants the international court to remain alive, even if it needs to be changed, Ms. Wilson-Raybould told The Globe.
“We’ve heard concerns about the ICC, we’ve heard concerns about many things,” she said. “I’m going to take them back and I’m going to talk to my colleague about it and see what we can do.”
Last week, she met South African Justice Minister Michael Masutha, the country’s lead minister on the ICC issue, although she would not disclose what they discussed.
“I will most assuredly work with the Minister of Foreign Affairs to reflect what I’ve heard and what we can do,” she said. “Our government will do everything we can to assist in that discussion taking place.”
The ICC has sparked controversy in Africa by attempting to prosecute two heads of state: Sudan President Omar al-Bashir, who has been indicted for genocide and war crimes in Darfur, and Kenyan President Uhuru Kenyatta, who was charged with crimes against humanity for his alleged role in fuelling ethnic violence after a 2007 election. The ICC dropped the charges against Mr. Kenyatta after witnesses were allegedly bribed and intimidated.
Last year, three African countries vowed to withdraw from the ICC, but Gambia reversed its stance after an election. South Africa is the biggest remaining opponent, and the timing could be right for a negotiated compromise. A domestic court has ordered the South African government to suspend its ICC withdrawal and consult its parliament first. As a result, the government has revoked its withdrawal notice and removed its withdrawal bill from the parliamentary agenda while it considers the issue.
Equally significantly, South African officials are visiting The Hague on Friday to meet ICC leaders, and the visit is seen as a key opportunity to search for ways to reach a compromise that could keep South Africa in the court.
South Africa, under former president Nelson Mandela, was a strong supporter of the international court and one of its earliest members in 2002. Its decision last October to quit the court was a shocking blow to international justice, and there were widespread fears that it could trigger a domino effect of other African withdrawals.
South Africa has argued that the court’s arrest warrants could interfere with South Africa’s role as a peaceful mediator of African conflicts. It has called for diplomatic immunity for state leaders, despite the ICC’s refusal to accept such immunity.
The ICC meeting on Friday was precipitated by South Africa’s refusal to arrest Mr. al-Bashir during his 2015 visit to the country, despite an ICC warrant for his arrest.
South African officials have been summoned to The Hague on Friday to explain why they refused to arrest the Sudanese fugitive, despite their obligations under the ICC’s founding treaty, the Rome Statute, and under South Africa’s own domestic laws.
The ICC’s decision, after a formal hearing on Friday, could offer a glimmer of hope for compromise, since it could address the tricky question of whether a member state is obliged to enforce an arrest warrant on a visiting leader from a country such as Sudan, which is not a member of the court. There is legal dispute on this point, and the ICC could provide clarification that would help South Africa, which has argued that it must respect the diplomatic immunity of heads of state.
Civil society activists are also hoping to mediate a solution by finding ways to address South Africa’s concerns.
The international court is facing attack from African politicians who accuse it of an anti-Africa bias. So far, only Africans have been convicted in the ICC’s prosecutions. The court cannot prosecute anyone in the United States, Russia, China or other non-member states, so the prosecutions have ignored many crimes.
The court’s defenders, however, have noted that most of the ICC trials were a result of cases submitted to the court by African governments themselves.
Earlier this year, the African Union debated a plan for a “mass withdrawal strategy” to put pressure on the ICC. But it approved only a non-binding motion on the issue, and many African countries disagreed with it.Report Typo/Error