A meeting of the African Union on Friday has put the International Criminal Court (ICC) in the spotlight as countries on the continent voice concerns about the court, though these discussions are not new, said Tiina Intelmann, the ICC President of the Assembly of States Parties, in this interview with the Global Observatory on September 19. 

“There have been discussions about the relationship of the African Union and the ICC, and African states parties and the ICC, even before the Kenyan cases started,” she said. “This discussion has been ongoing with respect to the situation in Sudan, Darfur, [with] arrest warrants issued against President al-Bashir. So, it’s not a new discussion.”

“If we remember correctly, there were also some skeptics who thought that this court would never work, and it did start to work. And it has been doing quite remarkably, I should say. The proof of that is also all the self-referrals that countries have made of their situations,” she said.

“Uganda, Central African Republic, the Democratic Republic of Congo—all of them came to the court and said, we do not have existing judicial instruments to take care of investigations and prosecutions of crimes that have happened in our territory,” she said. “Mali—the same thing, just quite recently; and Comoros, even more recently asked the ICC to investigate specific crimes that had taken place on a ship that had been registered on the flag of Comoros.”

“Of course, when we established the court, we didn’t think that it was going to be easy, and indeed, the path that we are following now is not easy at all,” she said. “We are fighting against impunity, and ultimately we try to prevent crimes from happening, but we are very far from that.” 

John Hirsch is Senior Adviser to the Africa program at the International Peace Institute.

Listen to interview (or download mp3):

Transcript (edited for clarity)

John Hirsch: Good afternoon. We’re here at the International Peace Institute with Ambassador Tiina Intelmann, the ICC President of the Assembly of States Parties, and I thank you very much for joining us today. 

Clearly, there was a need for the International Criminal Court when it was first established in 2002. How would you assess the performance of the courts over the past eleven years?

Tiina Intelmann: Yes indeed, there was a need for the International Criminal Court when it was established. If we remember correctly, there were also some skeptics who thought that this court would never work, and it did start to work. And it has been doing quite remarkably, I should say. The proof of that is also all the self-referrals that countries have made of their situations. 

Of course, when we established the court, we didn’t think that it was going to be easy, and indeed, the path that we are following now is not easy at all. We are fighting against impunity, and ultimately we try to prevent crimes from happening, but we are very far from that. 

JH: Some countries have not signed up to the Rome Statute, in particular, very large countries; the United States, Russia, India. How does the lack of universal adherence constrain or impact the effectiveness of the ICC?

TI: We work towards the universality of the statute, and I feel that really the goal will be achieved when all states will be a party to the statute.  At the same time, there’s a possibility foreseen in the statute, if crimes happened on the territory of a state that is not a party, to have a Security Council referral of that situation to the ICC. Some of the countries that we know have signed and not ratified; others have not signed at all. I hope that they are considering carefully. 

JH: I hope so, as well. A number of African observers in the African Union itself have criticized the International Criminal Court for focusing exclusively on cases in Africa. How do you respond to that criticism?

TI: That’s a question that is being asked very, very often, and of course, we then have to go through all the eight situations that the court is dealing with, mostly self-referrals by states—Uganda, Central African Republic, the Democratic Republic of Congo—all of them came to the court and said, we do not have existing judicial instruments to take care of investigations and prosecutions of crimes that have happened in our territory. Mali, the same thing just quite recently; and Comoros even more recently asked the ICC to investigate specific crimes that had taken place on a ship that had been registered on the flag of Comoros. So, we have a number of states that have come to the ICC themselves. There are two situations that have been referred by the United Nations Security Council, accidentally also on the African continent, but that was a decision of the United Nations Security Council.

JH: Kenya is now considering withdrawal from the court. How does the Assembly of States Parties plan to deal with this?

TI: The Kenyan Parliament has passed a political motion about withdrawing from the statute, and I hope that they will really take another look at the whole issue. The situation right now in Kenya is also somewhat emotional, and I hope that the decision makers do understand that the withdrawal, if it were to happen, does not impact the ongoing cases. And that is a very, very important thing to remember. Of course, withdrawing from the Rome Statute, as sad as it is for me, it’s a right of every state party; it’s a right of every state to accede and also to withdraw from the statute, and there are provisions, particularly article 127 that speaks about it. 

JH:  The African Union, as you know, is currently voicing strong opposition to these two trials, and there are suggestions that the African Union will or is encouraging other African countries to leave the court. Are you concerned, in your capacity as president of the assembly of states parties, that Kenya’s withdrawal could set a precedent by which some or all of the other 33 African member states would also withdraw, and what would that mean for the future of the ICC?

TI: There have been discussions about the relationship of the African Union and the ICC, and African states parties and the ICC even before the Kenyan cases started. This discussion has been ongoing with respect to the situation in Sudan, Darfur, [with] arrest warrants issued against President al-Bashir. So, it’s not a new discussion. 

I do not know which African states might be withdrawing. Right now, none of the notifications have been presented to the United Nations secretary-general. I know that the African Union is planning to have another discussion about the relationship with the ICC, possibly in October [the meeting is now confirmed for October 12-13 -ed.]. We will see what the outcome will be. But I hope that all of the aspects of the ICC relationship with African states will be considered and duly appreciated. 

JH: Thank you very much for sharing your insights with us.