An African Exodus From the ICC Shows How the Court Sealed its Own Fate
Julian Hattem, WPR, Nov. 1, 2016
Africa’s long-simmering tensions with the International Criminal Court appear to be boiling over. After years of allegations that the ICC has focused solely on the African continent, while letting abuses in other parts of the world go unpunished, three countries are now preparing to withdraw from the statute authorizing the court. Burundi began the process to leave the court last month, followed in quick succession by South Africa and, last week, Gambia.
More are expected, especially given South Africa’s prominent role as the continent’s second-largest economy and a regional leader. Kenya, Namibia and Uganda have all expressed unease with the ICC in the past. A mass African exodus will be a “hot issue” at an African Union summit in January, according to Uganda’s deputy foreign minister, Oryem Okello.
When the Rome Statute that created the ICC was first adopted in 1998, some of its biggest boosters were African leaders struggling to consolidate political power in the aftermath of wars and other internal conflicts, or dealing with ongoing separatist movements and insurgencies. The first country to ratify the Rome Statute the following year was Senegal. More recently, Archbishop Desmond Tutu of South Africa called it “Africa’s court.”
Yet despite that early support, many African leaders have turned on the world’s first international court with the power to prosecute genocide, crimes against humanity and war crimes, calling it an imperialist project working for the West. To date, all but one of the 10 investigations opened by the court have involved cases in Africa. Every single one of the 39 people indicted by the ICC is African. On state television last Tuesday, Gambian Information Minister Sheriff Bojang called the ICC “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”
The court was designed to step in only when national governments were either “unable” or “unwilling” to bring justice themselves. But since 2002, when it entered into force, the ICC has been hamstrung by a limited jurisdiction that is subject to broader geopolitics. Defenders of the court have noted that it is only able to investigate cases based on referrals from the United Nations Security Council or within countries that are a party to it. Many of the cases in Africa were opened because leaders there explicitly asked for its intervention.
The ICC has opened preliminary investigations in multiple countries outside of Africa, including Venezuela and South Korea, though it has not handed down charges in those cases. Possible investigations into Syria, North Korea or other countries where human rights violations appear obvious have been impossible because the countries aren’t party to the ICC and have powerful allies with veto powers on the Security Council, namely Russia and China.
Three of the five permanent members of the Security Council—the United States, Russia and China—have refused to join the ICC, leaving many with the sense that some of the world’s most powerful nations are setting themselves above the system of international justice.
But the ICC also brought some of these troubles on itself. Across Africa, many people were angered by the court’s decision in 2011 to indict Uhuru Kenyatta, then the deputy prime minister and currently president of Kenya, for his alleged role in instigating violence following the country’s 2007 election that left more than 1,000 people dead. Kenyatta, who used the ICC indictment as a foil during his successful 2013 presidential campaign, became the first sitting of head of state to appear before the court in October 2014. The charges against Kenyatta and his deputy, William Ruto, were later withdrawn due to insufficient evidence, though prosecutors claimed that an uncooperative Kenyan government, as well as bribery and intimidation against witnesses, had stymied the case.
A heightened focus on the continent was a natural outcome of the ICC’s structure, and the court did little to dispel the notion that it had Africa in its crosshairs.
Kenyatta’s case has come to define the court and may have ended up signing its death warrant. At an African Union summit last February, Kenya pushed a nonbinding resolution calling for countries to withdraw from the ICC en masse. Countries such as Uganda, another skeptic of the court, were only too glad to see the ICC intervene against rebels and warlords operating within their borders during the court’s early years. But leaders have changed their tune of late, as they have solidified their power and no longer need the ICC to target their opponents.
“When it touches on the heads of state, then that is a totally different ballgame,” says Allan Ngari, a researcher at the Institute for Security Studies, a South African think tank.
The ICC was never successful at building popular political legitimacy, according to J. Peter Pham, the director of the Africa Center at the Atlantic Council in Washington. “In many respects, the problems the court faces in Africa are probably pitfalls that could’ve been avoided if it was more attuned to the fact that, in any democratic society, the courts are only as good as their legitimacy,” he says.
In South Africa, the decision to withdraw from the ICC comes partly in response to a looming court case there regarding Sudanese President Omar al-Bashir, who has been indicted by the ICC for war crimes, crimes against humanity and genocide. Despite those charges and the international warrant for his arrest, Bashir was able to visit South Africa last year without being imprisoned. Bashir hastily left the country after a South African court ruled he should be arrested. Since then, two lower courts have ruled that President Jacob Zuma’s government broke the law by failing to arrest Bashir; an appeal was due to come before the Constitutional Court later this month. The decision to withdraw from the ICC makes the matter essentially moot, the South African government has claimed, heading off a potential vulnerability for Zuma, who has faced several other legal controversies.
The move has also been viewed as an effort to solidify South Africa’s position as a regional leader, by putting relationships with fellow African nations above those of broader treaties. In a letter withdrawing from the court, the South African government told the U.N. that the current demands of the ICC “are incompatible” with South Africa’s “obligations with respect to the peaceful resolution of conflicts.”
Burundi’s move appeared more straightforward. In April, the ICC announced that it was opening a preliminary investigation into political violence there, prompting a backlash from President Pierre Nkurunziza, whose successful attempt to seek a third term last year threatened to plunge the country back into civil war. The decision by Gambia is more of a surprise, given that the country has not previously made waves about its opposition to the court. The move is especially awkward for Fatou Bensouda, the ICC’s chief prosecutor, who is a former Gambian justice minister.
Both outgoing U.N. Secretary-General Ban Ki-moon and the head of the assembly of state parties to the Rome Statute, Senegalese Justice Minister Sidiki Kaba, have called for Burundi and South Africa to reconsider their positions. In any event, Burundi, Gambia and South Africa will all formally remain a part of the court for at least another year, per the terms of the Rome Statute. Zuma’s government is also facing a legal challenge over its notification to withdraw from the court, since the South African parliament never approved the matter.
But the political damage appears to have been done. The ICC may not have been intentionally targeting Africa more than other places. A heightened focus on the continent was a natural outcome of its structure, though, and the court did little to dispel the notion that it had Africa in its crosshairs. By failing to account for political realities, the court has helped to seal its own fate.