By Laura Truesdell, STAND Canada Blog Writer

In response to the January summit of the African Union, where discussions began on strategizing a mass withdrawal of African nations from the International Criminal Court (ICC), Zambia has begun public consultations on whether to reaffirm its membership. At this initial summit Zambia had expressed their reservations, however public consultations began this past March as Zambians decide whether or not remain a member of the ICC.

Non-governmental organizations (NGOs) have rightly been calling on Zambia to reaffirm its membership with the ICC. The country has been considered a human rights leader on the continent for many years, and has been a signatory to the Rome Statute since the ICC’s inception. Leaving the ICC would effectively diminish Zambia’s reputation, and potentially threaten the stability and security of the country and the region. Advocates note that it is paramount that Zambia carefully consider the implications of withdrawal, particularly as there is no regional court in southern Africa that can hold perpetrators of war crimes to account. Human Rights Watch has also recently highlighted that the human rights standards in Zambia have been declining under the current government lead by President Edgar Lungu. Further, Zambia does not have any domestic laws that would hold perpetrators of genocide, war crimes or crimes against humanity to account. Zambia opposition leader, Nason M’soni, claims the current government wants to leave the ICC in order to evade justice, accusing the current President of electoral fraud in the August 2016 elections, and increasingly limiting freedom of speech. All troubling signs for democracy, and present worrying questions about where the country is headed.

Scholars caution that the Zambia case is reflective of the overall discontent felt by African nations with the ICC given that Zambia is currently not implicated in any matters before the court. While the ICC and its supporters are quick to dismiss allegations of bias, it is the victims of these horrific crimes that are left seeking justice. Accordingly it is not helpful to be dismissive of these rumblings of dissatisfaction, as the Court has marked failures in Africa.

Meanwhile, the Zambian Justice Minister announced that the consultation process will take place across 30 districts through public hearings where individuals are invited to make both written and oral submissions. Following the consultations, a final document is expected to be presented to the African Union at a Summit in June. Already the process has been marked by controversy. The Zambian government has had to deny reports that it has in fact already made a decision on plans to withdraw from the ICC, and there have been subsequent calls that the public consultation process is a waste of resources. Further top Zambian political officials have been quoted as indicating their preference for remaining in the ICC, however officially the government has not taken a formal position.

The ICC was established as the first (and only) global criminal court with the ability to prosecute horrific war crimes that have historically been met with impunity, including genocide. The past year has seen the Court come under heavy criticism for its perceived bias towards prosecuting African nations, which led to an expressions of interest within the  African Union to organize a mass withdrawal of their states from the Rome Statute, initiating a dissolution of African participation within the ICC. There are legitimate concerns that the Court is unable to examine crimes committed in powerful countries or in countries with powerful allies, leaving certain crimes and categories of victims without recourse to justice. Further troubling for victims is the fact that absent a direct referral from the UN Security Council, the Court only has jurisdiction to investigate crimes committed by signatory countries or if the non-signatory country has offered the court authority to investigate.

Encouragingly, of the three countries that had previously expressed the intent to withdraw from the ICC, Gambia, South Africa and Burundi, it is only Burundi that currently is maintaining its intent to leave with the other two countries either rescinding or re-examining their initial claims. Also of note, discontent has not been widely expressed by the African continent as a whole, with Nigeria and Botswana reaffirming their membership and support for the ICC and its mandate. While arguably far from perfect, and with lots of room to improve, the Court still remains as arguably the last hope for victims of war crimes who have nowhere else to turn for justice, and membership should be encouraged and maintained.  

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