‘Malawi should continue with ICC’

In this interview EPHRAIM NYONDO talks to MAKHUMBO MUNTHALI, Centre for Human Rights and Rehabilitation (CHRR) advocacy coordinator, on the African Union’s (AU) recent decision not to cooperate with the International Criminal Court (ICC).

Recently, we have seen the AU’s non-cooperation to the ICC in view of the ICC’s investigation and prosecution of heads of States such as Kenya’s  Uhuru Kenyata and the warrant of arrest of Sudan’s Al Omar Bashir. Do you think AU is justified to claim that ICC targets Africa and not superpowers like USA? Is Africa a participant or target of ICC?

It is important to note that the AU’s constitutive Act makes clear that values of accountability and ending impunity are shared by AU and ICC. Besides, the ICC’s Rome statute agreement is done with individual states. While individual states obligations under the AU are important, it is vital to also respect individual states obligations under international criminal law through ICC.

As regards whether ICC is targeting African leaders, I believe these are unfair allegations to ICC as an institution. If anything, the blame should be put on the UN Security Council which partly has the mandate to make referrals to the court even to those countries which are not party to the Statute. Most of the cases before the ICC were brought by African states themselves. Again, you cannot expect the ICC to investigate an individual from USA considering that USA is not party to the statute. A citizen from USA, which is not party to the ICC, can only be investigated and prosecuted by a referral from UN Security Council.

What do you think is Malawi’s government position on the ICC and the Rome Statute of ICC? Is Malawi government in support of AU’s position?

I think government officials can be in a better position to answer this question. However, from our observation and experience we can openly say that Malawi government’s position on the ICC and its commitment to the Rome Statute of the ICC has been a mixed bag. There have been some positive developments as well as some negative as well which has often challenged its commitment to the Rome Statute. There have been cases where Omar Bashir was allowed to enter the country during the late Bingu wa Mutharika’s regime, which was an outright departure from its obligation. However, Malawi showed some commitment to the statute when it refused to host the AU summit following reports that Al Bashir would be present.

Genocide is partly criminalised under the Penal Code and Malawi has been able to cooperate with the ICC by accepting to host ICC witnesses, clearly attesting to its commitment. Just last year we saw the current regime renewing its commitment to the Rome Statute of ICC- through statements by the Minister of Justice and Constitutional Affairs and the spokesperson of the Ministry of Foreign Affairs and International Cooperation that Malawi had no intentions of withdrawing from ICC, which it signed and ratified in 1999 and 2002 respectively.

Some quarters want Africa to pull out of the ICC.  Do you think this is the best way to go in view of AU’s backlash of ICC?

I strongly hold that the need to have an African Court with criminal jurisdiction is not a new idea as empirical evidence supports the view that Africa was pregnant of application of international criminal justice on the continent in order to curb serious crimes of international criminal law and end impunity of such. However, it is important to note that the creation of ICC does not mean that Africa cannot have another court with criminal jurisdiction to complement the efforts of ICC both at national and international level. As long as such a court is created not as a safe haven of shielding certain individuals from investigation and prosecution under the guise of immunity, but rather recognises the fact that immunity from serious  crimes of international concern such as crimes against humanity and genocide has no place under both treaty and customary international law.

Your organisation, in partnership with Malawi Law Society (MLS) and Malawi Human Rights Commission (MHRC), has been urging government to domesticate the Rome Statute of the ICC which Malawi signed and ratified in 1999 and 2002 respectively. Why do you think it is important for Malawi to domesticate the statute?

We commend government for signing and ratifying the Rome Statute of ICC on March 3 1999 and September 19 2002, respectively. However, we strongly believe that Malawi should take a step further by living up to its constitutional obligations and domesticating the statute to enable our domestic legal framework to investigate and prosecute serious international crimes such as crimes against humanity, genocide, war crimes and the crime of aggression. This takes into consideration the fact that Rome Statute system builds on the principle that the primary responsibility for investigating and prosecuting atrocity crimes lies with the State as the ICC would only step in in rare cases where the State is unwilling or unable to genuinely carry out the investigation or prosecution. Besides, the Malawi Constitution provides for domestication of international instruments which the country is party to.

Some quarters have argued that ICC’s arrest of heads of State is impractical and a threat to the security of a nation as it may lead to chaos in that country. Do you agree with this observation?

I think before we even attempt to answer this question we also need to ask ourselves this question: Should political office be a safe haven where one can run to in order to escape justice on serious crimes such as genocide or crimes against humanity?  It is important for us to appreciate that individual criminal responsibility is one of the pillars of the Rome Statute-indeed of international criminal law as a whole. The Court has jurisdiction over natural persons and not states, institutions or organisations. This implies that any person who commits a crime within the jurisdiction of the Court, even when he or she is a State official, is held individually liable and punished as such. This is partly due to the grave nature of these crimes which offend human dignity and human rights. Let us avoid setting a bad precedence by allowing immunity and impunity to these ICC’s statute crimes.