THE HAGUE — Debate around the future of the International Criminal Court (ICC) should focus on its structural flaws and how that is fuelling perceptions of bias, according to an African Union (AU) legal advisor.
A starting point would be to reconsider the powers of the UN Security Council, said Adewale Iyanda, part of the AU's commission on international law, at an Assembly of States Parties side-event on Tuesday.
At present, one of the ways a case could be referred to the court was through the Security Council.
Its permanent members — the US, China, Russia, France, and the United Kingdom - all have veto rights.
Only France and the UK are member states of the court.
"I think there is actually a need to restructure the relationship, either by deferring those powers to a more democratic structure like the UN general assembly, or simply removing those powers altogether," said Iyanda.
"I know it will have an effect on universality. But if the UN Security Council is going to apply its mandate in a manner that creates suspicion or selectivity, I don't think it has any positive impact on international criminal justice, quite honestly."
'Engage with the politicians'
He said it was not hard to imagine how the relationship with the security council and entire ICC system was affected, when a request by a 54-member bloc to defer proceedings and cases in Africa was "not considered or responded to".
The way the court was currently set up, and how it applied the principle of complementarity (complementing existing national justice systems), lead to more cases coming out of the Africa, he said.
"Does it protect powerful interests? Who knows. These are the things we need to look at it."
He said the AU continued to co-operate with the court on a technical level, by bringing both politicians and technical experts of member states to workshops.
This should escalate to a more political level, rising above a debate on technicalities and academics.
"You need to engage with the politicians. They are the decision-makers. Until they are brought into this discussion, we are not going to move anywhere."
Iyanda was asked about the mood in the AU after SA, Gambia and Burundi indicated they would withdraw from the court and its founding treaty.
Other African states had shaken the notion of a united continental front by affirming the role of the court, or believing there was space as a member to fix issues.
He responded to News24 by saying every organisation had individuals with different views.
The AU's members were sovereign states who were best placed to speak on their own reasons and concerns.
"Of course, some of those concerns have been collectively conveyed by the African Union through its decisions, so I can't speak as to whether there would be mass withdrawals."
He said the mood at the AU, as always, was one of a "big family".