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International Criminal Court: A fight that Canada must lead

Erna Paris is the author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.

Is Canada back? That's what the government of Justin Trudeau has been telling us. If so, an opportunity to demonstrate this claim has just landed in its lap.

Canada practically created the International Criminal Court – and the court is in trouble. The ICC is the world's first permanent independent tribunal with a mandate to prosecute genocide, crimes against humanity, and war crimes. It is also a judicial institution operating in a tsunami of international politics.

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And there's the rub. After years of claiming the tribunal was colonialist and racist, three African countries have announced their withdrawal. Burundi's president, Pierre Nkurunziza, broadcast his country's departure after the ICC indicated it would investigate violence during which hundreds of civilians were killed and thousands forced to flee.

President Jacob Zuma of South Africa, a country that joined the ICC in the spirit of Nelson Mandela, is fighting for his political life. He hopes to deflect the impact of an imminent high-court decision about his refusal to arrest indicted Sudanese president Omar al-Bashir when he visited the country in 2015. Gambia's president, Yahya Jammeh, a man who once threatened human rights activists with death, has been strategically upping the anti-ICC rhetoric as his country's December elections draw near.

Nevertheless, it would be a mistake to conclude that all Africa supports these departures, or that the ICC has suffered irreparable harm. Currently, 124 states are party to the Rome Statute – the treaty that governs the court – and the general commitment to ending impunity for the world's worst crimes remains intact. Should these three countries realize their threat, there would still be a healthy quorum. Nonetheless, the move to repudiate constitutes a setback: a warning that endemic problems must be addressed.

First, the optics: Although the situations in question were either brought to the court by the leaders of African countries, or referred by the Security Council, it is problematic that the majority of ICC cases have been from Africa. Accusations of racism are dubious – the court's overseers are its state parties and any individual who breached the criteria of judicial fairness would soon be dismissed. But perceptions of bias cannot be ignored.

The prosecutor, Fatou Bensouda of Gambia, recently broadened the spectrum by announcing investigations in other places, including Afghanistan – a highly significant move since the ICC has jurisdiction over both the nationals of state parties and crimes committed on the territory of state parties. This means that although the U.S. is not a state party to the court, its military may be investigated for war crimes perpetrated in the member state of Afghanistan. Should these investigations culminate in indictments, the notion that the ICC operates according to a double standard may be allayed.

Then there's the issue of "complementarity." The ICC was designed as a tribunal of last resort to be triggered only when countries proved unwilling, or unable, to try criminal cases in their own national courts. Unsurprisingly, the record of domestic prosecutions is not inspiring; the African Court of Justice and Human Rights, for example, voted to grant immunity to heads of state and government officials – the people who hold ultimate responsibility.

If immunities are a thorny issue, so is the timing of ICC interventions. Should indictments happen in tandem with peace negotiations? Or follow sequentially?

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On Nov. 16, Foreign Affairs Minister Stéphane Dion will address the Association of States Parties in The Hague. Mr. Dion has already released two strongly worded statements regretting the departure of the three African countries.

In the 1990s, Canada led the "Coalition of the Like-Minded" – the countries that paved the way for the creation of the ICC. Now is the time to recreate that coalition, with Canada once again taking the lead.

The ICC is unprecedented. It was created to confront the historical impunity of the powerful and as a place where victims of human rights abuses may seek justice. As the world becomes more lawless, the ICC must be strengthened. And Canada is well-placed to lead.

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