The International Criminal Court is currently facing the most difficult existential test since it was established in 2002/3.
Depending on how these difficulties are resolved or not resolved, the ICC will emerge stronger of irreparably damaged.
Because the very existence of the ICC is at question, it is clearly within reasonable fathom that the whole edifice might yet collapse.
The reality of the matter is that those questioning ICC as currently constituted cannot be dismissed out of hand, not least because among them are countries that have always fought to preserve peace, justice and human dignity.
Just like the United Nations which is the defacto saint patron of the ICC, unless the court subjects itself to reform, the Court will eventually collapse from the weight of internal contradictions.
Burundi, South Africa and Gambia have recently triggered a process that will lead to withdrawal from the ICC.
This is painful for those who had wanted to showcase the establishment of the ICC as evidence of how international law will ultimately prevail over evil.
ICC enthusiasts might dismiss the withdrawal of three African countries as nothing when compared to those that remain.
But that really is not the issue. Even as more states are likely to in future withdraw rather join.
At issue here is the legitimacy of this otherwise noble creation, that unfortunately in practice has proved to be totally out of sync with what reasons it was initially created for.
For Africa, especially, the withdrawal of South Africa puts into question not just the legitimacy of the ICC, but also the Court’s viability in the long run.
South Africa has given what are clear, valid and legitimate reasons for their withdrawal.
Whether is political spin or not, we shall never know.
One of the reasons given by South Africa is that their obligations to the ICC clash and contradict with many of their other obligations including peace keeping initiatives across the continent.
And South Africa, given that country’s unique position in Africa is no question a big factor when it comes to expending resources including their soldiers for peace keeping initiatives.
Listening to ICC adherents, justice to the victims of war crimes and crimes against humanity supersedes everything else, including re-introducing peace.
This on its own is practically problematic for there can be no motivation for justice unless peace can be established.
In other circumstances it becomes inevitable to point out that while justice and peace are not mutually exclusive, there are instances where justice has to be forgone before peace can come back.
This is very painful. And indeed very difficult to explain to victims.
But it is the truth and most pragmatic reality that many countries emerging from civil wards or genocide have had to contend with.
Speaking at the Assembly of States Parties recently Attorney General, Athaliah Mokomme had this to say “With its increased judicial workload and currently exercising jurisdiction over 10 situations and 10 ongoing preliminary investigations, the ICC clearly needs the support and cooperation of the international community if it is to build on the new development agenda. We therefore welcome and support efforts by the President of the Court to carry out reforms within the institution in order to enhance its efficient financial operations. Mr. President, Botswana has always maintained that the ICC like any other organization is not perfect. The Rome Statute is a human project. It will continue to evolve, grow, gain experience, respond to new challenges and hopefully live up to the expectations of many across the world. It exists to serve humanity and that is why we must endeavour to make it universal. We are alive to the strong winds of discontent and discomfort especially from our own continent, that the ICC appears to be targeting African leaders and Africans. There are proposals from some of our sister States Parties for the ASP to urgently consider certain provisions of the organization’s rules and procedures and to address their concerns.”
Coming from one of the world’s foremost ICC adherents like Botswana, this is understandable.
But it will do nothing to address concerns by many other African countries that the ICC is targeting Africans, that nine out of ten cases before the ICC are from African countries, and that only African leaders have so far appeared before the ICC.
Given that Botswana is one of the countries that has signed a bilateral treaty effectively giving Americans immunity for the same crime that the country say it would arrest Sudanese President Al Bashir, Botswana’s position smacks of hypocrisy, possibly worse.
Botswana, like the rest of other ICC enthusiasts has a duty to explain and justify why the Court, which effectively a united Nations ancillary is still to attract the patronage through signature of three out of the five United Nations Security Council members.
Many African countries for example cannot understand why no9body is being held accountable by the ICC for the crimes against humanity in Syria, Afghanistan and Iraq.
Rather than being self-righteous in their approach, countries like Botswana need to call for more practical resolutions to the many difficulties that the ICC faces.
Otherwise the Court will simply collapse even in the face of such emotionally charged support such as that offered by countries like Botswana.