Presentation to the Symposium on the ICC that Africa Wants 9-10
November 2009 By Dr Athaliah Molokomme Attorney General of Botswana
Slide 2 Disclaimer: I dont speak for African States Parties (ASPs)
or the African Union (AU); I was not at 3-6 Nov 09 AU prep meeting
so have 2nd hand information from Botswana delegation; Concerns of
ASPs, AU or Botswana not necessarily the same (hence perspectives);
Aim to share my understanding of the various concerns, as well as
the Botswana position on ICC Slide 3 Arguments over participation
of non states parties resolved in favour of their non
participation; Affirmed commitment of AU MS to the ICC, combating
impunity, promoting democracy, rule of law & good governance;
Legal recourse in Rome Statute to be followed by affected parties
regarding appeal process & immunity; Agreed to Preparatory
meeting of African States Parties (legal experts, Ministers) for
2010 Review Conference; Slide 4 No consensus on: Waiver of immunity
& consent to surrender (Articles 16 & 98); Discretionary
Powers of the ICC Prosecutor; Collective African withdrawal from
the Rome Statute Slide 5 Concept note focus on four main issues:
Procedural issues: Guidelines for ICC Prosecutors exercise of
discretion; The role of the Security Council in the work of the ICC
articles 13 & 16 Rome Statute; Immunities of Officials whose
states are not party to the Rome Statute; Proposals regarding the
crime of aggression. Slide 6 Concern: AU concept paper argues that
ICC intervention in African conflicts may prejudice attempts to end
conflict or to secure peace. Possible solutions: Revising statute
of the court by adding other factors for consideration by
prosecutor; or Assembly of States Parties to promulgate guidelines
that prosecutor should be obliged to take into account preferred AU
position; Prosecutor to review 2009 regulations & 2007 policy
paper in response to calls from States Parties Slide 7 Concern 1:
Legitimacy and appropriateness of UNSC referrals conferring ICC
jurisdiction over non state party situations, nationals and leaders
(e.g. Sudan President arrest warrant); Possible solution: Another/
additional body to be mandated by UNSC to exercise power of
referral. Slide 8 Concern 2: Power of UNSC to defer investigations
for 12 months requires approval of 9 members without active
opposition by any of the permanent members exercising veto right.
Possible solutions: Ultimate political oversight be exercised by
another body, e.g. Assembly of State parties; or Assembly of States
Parties could also provide for deferral of a case in the same way
as UNSC. NB: AU Concept paper acknowledges potential problems with
both options. Slide 9 Concern: Tension between Art 27 and 28:
Article 27 provides that the fact that state officials possess
international immunity does not bar the ICC from exercising
jurisdiction; Article 98 directs the ICC not to take action that
would result in the violation by States of their international law
obligation to accord immunity. NB: ICC relies on states to arrest
suspects who may have immunity. Possible solution: Amend statute to
provide that immunity be removed for States parties and retained
for non States Parties in the case of a NSC referral. Slide 10
Request ICC prosecutor to review his 2007 Policy Paper and 2009
guidelines, & include promotion of peace to ensure
accountability; UNSC to retain its referral powers in view of its
UN Charter mandate to maintain peace & security, & power to
set up tribunals; Amend Art 16 to give UNGA power to defer cases
for one year if UNSC fails to do so within 6 months as per Uniting
for Peace Resolution 377(v)1950; Slide 11 RSA, Nigeria, Burundi
& Tanzania to present proposal for amendment of Art 16,
Botswana to co-sponsor ; Assembly of States Parties should discuss
& clarify Articles 27 & 98 of Rome Statute especially
regarding non states parties; In the meantime, States Parties
should consider using Article 119 of the Statute and Rule 195 of
the Rules of Procedure and Evidence of the ICC to settle disputes;
Slide 12 African countries are the largest regional block of States
Parties to Rome Statute, and have special responsibility to support
the ICC; Latest attempts to undermine Rome Statute & ICC
unfortunate & unnecessary; Botswana unequivocally supports Rome
Statute & ICC, rejects impunity; GOB will cooperate with ICC to
ensure prosecution of perpetrators, state party or not, but still
has to domesticate statute & warrant. Slide 13 THANK YOU FOR
YOUR ATTENTION LETS DISCUSS!!
