AU Demands Specific Reforms in ICC Office of the Prosecutor
February 3, 2014
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The latest news in the ongoing tiff between the African Union and the ICC comes in the form of a letter from the AU to the ICC President Sang Hyung Song identifying four problem areas with the Office of the Prosecutor (OTP). The AU has threatened a mass pull out by all 34 of its member states if the ICC doesn’t come up with a plan to reform the OTP by April 30th.
The four problem areas are:
1) The inconsistent standards of OTP investigations, largely due to the OTP’s reliance on third parties such as NGOs to carry out investigations
2) The funding that the ICC receives from NGOs and the effect that might have on the ICC’s impartiality in deciding which situations to investigate
3) The funding that the ICC receives from other parties that might have more biased interests
4) The power of the OTP to initiate own cases without referral of member state or UN Security Council
Over the past few months there has been much international attention on the AU’s claims against the ICC, but this one in particular caught my attention for a variety of reasons.
The first is that this appears to be the first complaint from the AU about the ICC that addresses specific structural and procedural problems with the ICC. Previous complaints mainly consisted of broad claims that the ICC was race-hunting or biased against Africa. This letter was an attempt to look at what specific flaws in the system might be contributing to the bias, and it appears that the AU does think it is the system rather than the individuals comprising the system that is leading to the Africa-centric focus.
The second aspect of this letter that caught my attention is the focus on the Office of the Prosecutor, particularly given how much discussion has happened in class on the importance of the Prosecutor in shaping the direction of the ICC. The fourth claim in particular—that the AU takes issue with the ability of the Prosecutor to initiate investigations—is interesting because it challenges the amount of power that the Prosecutor holds. In this, the AU seems to be concerned about a rogue Prosecutor who is acting without accountability by the rest of the international community. The AU accused the OTP of abusing their power and making decisions unchecked and without the necessary international political support. Our readings in class indicated that concern over a rogue prosecutor was something shared among the powerful states that opposed the ICC, but it never seemed to be a concern of the smaller states (such as those in the AU). It seems that over the past decade of the ICC, the prosecutor may have (intentionally or not) assuaged the concerns of the powerful states, but in the process stoked the ire of the smaller states that were the original supporters.
Finally, the rest of the complaints seem to be centered around where the ICC receives its funding and support. The AU specifically called out the ICC for outsourcing its investigative work to NGOs and other third parties that might not be as accountable or as impartial. While these are valid concerns, the AU doesn’t provide any alternative to address the fact that the ICC lacks funding and resources, particularly when its member states are not entirely compliant or supportive. It can be argued that the reason the ICC has been outsourcing investigations to NGOs is because it lacks the funding from its member states to conduct its own investigations. This will have to be addressed if the ICC is expected to be able to “fix” this aspect of the AU complaints.