The decision by South Africa, Burundi and the Gambia to leave the International Criminal Court sets a dangerous precedent for the rest of the African countries under the Court’s jurisdiction. Created in 2002 and governed by the Rome Statute, a 1998 treaty, the ICC is the first legal body with permanent international jurisdiction to prosecute genocide, war crimes and crimes against humanity (1). The treaty had 124 member states including 34 African states, which represents the largest regional bloc of member states (2). Described as a “milestone in humankind’s efforts towards a more just world,” in the ICC’s founding documents, the Court aims to hold criminals accountable for their crimes and prevent atrocities from happening again (3).
Since then, many African countries have expressed dissatisfaction with the Court, which is located in The Hague, and have accused it of bias. The Gambia announced on October 25 that it would withdraw from the ICC, calling the Court an “‘International Caucasian Court’ for the persecution and humiliation of people of color, especially Africans” (4). Burundi labeled the ICC as a ‘Western tool to target African governments’ (5). Uganda’s president Yoweri Museveni called the ICC “useless” and praised South Africa’s decision to leave (6). Namibia is also reconsidering its membership. Additionally, the African Union earlier this year said it would consider a mass withdrawal from the Court––a proposal initiated by Kenyan president Uhuru Kenyatta, who had previously appeared at The Hague on allegations of crimes against humanity (7). Despite this, the Court also has supporters in the region. At an African Union summit meeting in July, the Democratic Republic of Congo, Ivory Coast, Nigeria, Senegal and Tunisia were among the countries that opposed a Kenyan-led drive for a group walkout (8).
Frustrations with the Court are not unwarranted. Nine out of 10 cases the Court is currently investigating are in African countries (Mali, Cote D’Ivoire, Central African Republic, Libya, Kenya, Sudan, Uganda, Democratic Republic of Congo). Georgia is the only country not in Africa facing an investigation. One example of bias is the fact that the Gambia has pressured the ICC to try and punish the European Union for the deaths of thousands of African migrants trying to reach its shores, yet has been unsuccessful. Additionally, the ICC’s unwillingness to prosecute Tony Blair for his role in the Iraq War is another example of institutional prejudice. Defending the Court against accusations of bias, the ICC’s top prosecutor Fatou Bensouda, a lawyer from the Gambia, points out that six of the nine African cases were brought to the Court by African governments and that two were referred by the United Nations Security Council (9). Also, supporters of the ICC argue that the focus on Africa was partly a result of the difficulties of conducting inquiries in other places and due to a prosecutorial strategy of going after high-level perpetrators (10). The Court has initiated preliminary investigations into situations in Palestine, the Ukraine, Colombia, Afghanistan, as well as the UK’s involvement in the Iraq War, but this preliminary caseload also includes investigations into Nigeria, Burundi, Guinea and Gabon (11).
South Africa’s decision to leave the ICC is especially problematic. The state announced it would leave in response to criticism that it had ignored an order to arrest President Omar Hassan al-Bashir of Sudan, saying that handing a leader over to the ICC would amount to interference in another country's affairs (12). It's an unfortunate change of positions for a country that was a founding member of the Court in the years after South Africa emerged from apartheid and had a legacy of supporting international justice under Nelson Mandela’s rule. As one of Africa's most developed countries, it is a reasonable fear that more states will follow South Africa’s decision to leave the ICC in a snowball effect. The Gambia already has. Yet, the criticism that South Africa faced for not arresting Mr. Bashir was deserved. Mr. Bashir has been long sought by international prosecutors for charges of war crimes, crimes against humanity and genocide related to the conflict in the Darfur region of Sudan. His ability to elude the Court once again is seriously damaging to the six-year campaign to bring him to justice. As a member of the ICC, South Africa had international and domestic legal obligations to arrest the ICC fugitive.
Facing criticism from human rights groups for the Bashir situation, President Jacob Zuma justified the decision to quit the ICC by arguing it conflicted with the state’s obligations to the African Union to grant immunity to serving heads of states (13). U.N. Secretary General Ban Ki-moon urged Zuma to reconsider its plan to withdraw from the ICC saying he "appreciates the continued and unwavering commitment of the South African government to justice and accountability" and hopes it will reconsider its decision (14). Ban said that he regretted the ICC departures and that they could "send a wrong message on these countries' commitment to justice” (15). South Africa’s decision to leave was not based on the “bias” that has been an understandable criticism of the Court. Zuma’s decision was an attempt to protect leaders who have committed horrible crimes and was a betrayal to all of the victims who have suffered.
The African leaders who are being persecuted deserve to be. In April, ICC chief prosecutor announced an investigation that would begin in Burundi for acts of killing, imprisonment, torture, rape and other forms of sexual violence (16). This would have most likely found controversial President Pierre Nkrunziza guilty of widespread violence. It is apparent that Burundi’s withdrawal is about protecting top leaders’ own interests and not about unfairness and geopolitical prejudice. Additionally, the Gambia justified their withdrawal as a response to geographical prejudice, yet the state has a questionable human rights record and had serious prospects of facing an ICC investigation eventually. If African states want to blame the Court for bias, that is understandable. Yet, that is not the real reason they are leaving. Domestic considerations, including the possibility of imminent prosecution, are the main motives behind ICC withdrawals.
The African Union has pressured its member states to withdraw from the ICC on grounds of alleged institutional bias. In January 2016, the AU met with the purpose of developing a “comprehensive strategy,” which included a withdrawal from the ICC and demanding that serving heads of state, including senior state officials, be granted immunity from prosecution (17). Giving serving heads of state immunity conflicts with the AU’s stated value of “justice.” Another conflict is that Article 4 of the constitutive act of the AU expressly rejects acts of impunity (18). Also, 2016 has been identified as the “African year of human rights with particular focus on the rights of women,” yet countries are backing out of their commitments to protect human rights. It is fraudulent that the AU claims to work in the best interests of the people, but wants impunity for African leaders that are committing atrocious crimes against African people.
If problems with the ICC were just about geographical prejudice, the African states would stay in the Court in order to reform it from within and make sure that the pursuit of justice is applied equally to all states and regions. Efforts need to be directed toward reforming the Court, not giving up on it and its goals of a more just world. If African states continue to back out and challenge the Court’s legitimacy, which is very possible due to South Africa’s influence, it could be fatal for an institution designed to protect the world’s most vulnerable people. The African states that do support the ICC need to continue to speak out and express their support of the institution as well as their continued commitment to human rights. Also, the ICC needs to find ways to work with the African Union and ensure that the ideals of justice and human rights are prioritized above state official impunity. It is necessary that the ICC maintains legitimacy for the sake of the victims who are abandoned and hurt by the governments that are supposed to be protecting them. South Africa, Burundi and the Gambia’s decision to leave further hurts their people and is an affront to decades of efforts in the global fight for human rights.
(1) Associated Press. "AP Explains: Why African States Have Started Leaving the ICC." Fox News. FOX News Network, 26 Oct. 2016. Web. 02 Nov. 2016.
(3) Chutel, Lynsey. "The African Leaders Leaving the International Criminal Court Actually Have a Chance to Fix It." Quartz Africa. Quartz Africa, 28 Oct. 2016. Web. 2 Nov. 2016.
(4) Jospeh, Abraham. "Why Did South Africa, Burundi and Gambia Decide to Leave the International Criminal Court?" The Wire. The Wire, 1 Nov. 2016. Web. 2 Nov. 2016.
(8) Chan, Sewell, and Marlise Simons. "South Africa to Withdraw From International Criminal Court." The New York Times. The New York Times, 21 Oct. 2016. Web. 02 Nov. 2016.
(11) Chutel, Lynsey. "The African Leaders Leaving the International Criminal Court Actually Have a Chance to Fix It." Quartz Africa. Quartz Africa, 28 Oct. 2016. Web. 2 Nov. 2016.
(12) Associated Press. "AP Explains: Why African States Have Started Leaving the ICC." Fox News. FOX News Network, 26 Oct. 2016. Web. 02 Nov. 2016.
(13) Nichols, Michelle. "U.N. Chief Urges South Africa's Zuma to Reconsider Quitting ICC." Reuters. Reuters, 30 Oct. 2016. Web. 2 Nov. 2016.
(18) "Constitutive Act." African Union. The African Union Commission, 2001. Web. 2 Nov. 2016.
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