It was June 2015, and South Africans were caught up in an international drama involving a mad dash to find Omar al-Bashir. Dozens of leaders had gathered in Johannesburg for an African Union summit, but it was the presence of the Sudanese leader—in defiance of an international warrant for his arrest—that stole the show. The summit’s discussions on gender equality were overshadowed by the question: Would South Africa, a self-styled beacon of human rights on the African continent, hand over a man facing charges of genocide against his own people to the International Criminal Court?
It would not. Much to the dismay of South Africa’s rights groups, al-Bashir’s jet was allowed to take off from Pretoria despite a local court order to stop him. Fast forward a year later, and South Africa has become the first country to formally withdraw from the ICC, arguing that its obligations to the court are preventing it from ensuring diplomatic immunity for leaders and officials. Its justice minister argues that it needs to be able to offer this immunity so that it can host peace negotiations.
South Africa is not alone in expressing its dissatisfaction with the court. Uganda’s president Yoweri Museveni, despite once asking the court to help prosecute rebel fighters, praised South Africa’s decision, calling the ICC “useless.” Earlier this month, Burundi’s parliament voted to leave the court, submitting its withdrawal to the UN. This week, Gambia followed suit, calling the court an “‘International Caucasian Court’ for the persecution and humiliation of people of color, especially Africans.” Kenyan lawmakers have already tabled a bill to withdraw from the court, and Namibia is also reconsidering its membership, saying the country no longer needs the court, now that its own institutions have strengthened. Perhaps most significantly, 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 (the charges were dropped.)
The ICC’s value is as a court of last resort for victims let down by the governments that are meant to protect them. If it loses legitimacy—as it might if South Africa’s exit leads to others doing the same—it could mean the beginning of the end for an institution designed to fight for the world’s most vulnerable people. Rather than abandoning the court, African nations have the opportunity to use their power as a region to reform the court from within, and ensure that the principle of impunity applies equally to all states.
The ICC was established in 2002 under the Rome Statute, a 1998 treaty which determined genocide, war crimes and crimes against humanity as international crimes, and gave the court the mandate and jurisdiction to prosecute them. The ratification of the statute was described as a “milestone in humankind’s efforts towards a more just world,” in the ICC’s founding documents. Thirty four African states signed up to the court, comprising the largest regional bloc of the 122 countries that volunteered to be under the court’s jurisdiction.
Since then, Africans have lost their enthusiasm for the court’s style of international criminal justice, accusing it of bias. Fueling this suspicion is the fact that nine of the ten situations the court is currently investigating are in African countries. The election of Gambian Fatou Bensouda as chief prosecutor in 2011 has done little to change the perception of bias, even in her own home country.
“Yes the African leaders who are being prosecuted deserve to be, and their victims are African, but who is not being prosecuted?” said Bonita Meyersfeld, a professor at the Wits Centre for Applied Legal Studies. “If you have a system of justice that is not global, why call it the global system of justice?”South Africa’s decision has swung the exit door wide open for others to follow.
This criticism is not unwarranted. Despite its wide reach, the ICC simply does not have clout to investigate countries in the west, known in international relations as the “global north.” If anything, it is simply more deferential to these countries, Meyersfeld said. 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.
The ICC has refuted accusations of bias, inviting academics and other experts to weigh in, and saying that the number of African cases has more to do with its jurisdiction being limited to signatories of the Rome Statute, and over crimes committed after 2002.
Of the current African cases on the prosecutor’s desk, all but two were brought to the ICC by the states themselves, including when national justice systems have failed. In the cases of Libya and Sudan, the investigations were referred to the prosecutors office after a vote by the UN Security Council, votes in which African countries participated, ICC spokesman Fadi El Abdallah told Quartz. He insists that the court is not targeting African personalities, but rather acting on behalf African victims.
The court’s apparent lack of objectivity may have more to do with global political inequality than the mechanisms of the ICC. The United Nations Security Council is perhaps one of the most powerful yet imbalanced international instruments, dominated by China, Russia, France, the United States, the United Kingdom. The five have a permanent seat on the council and veto power, a throwback to the geopolitics of a post-World War II era. Here African countries have long lobbied, and failed, to bring reform. In some cases, the security council has simply ignored African leaders’ requests to handle their own matters first, said Meyersfeld. She described the security council’s attitude towards African issues as one “of deep disrespect” and says that culture permeates the ICC’s operations. “It comes with a prejudice and a hubris and an arrogance that has left a very bitter taste in the mouths of African states,” she said.
Despite the criticisms leveled against it, the court remains one of the few places where victims of genocide, atrocities, war crimes and other aggressions can take their case. Africa has its own Court on Human and Peoples’ Rights, managed by the continent’s regional body, the African Union (AU), but it only acts on referral from member states, not individual victims, explained Meyersfeld. In May this year, a special AU court successfully prosecuted and sentenced to life former Chadian leader Hissene Habre for war crimes. But in 2014, the AU voted to grant sitting presidents and high-ranking officials immunity from prosecution, leaving victims of state-sponsored atrocities with nowhere to turn. Imagine if that vote was used for good.
“If they [African states] were to use that power to advance trade and to ensure that there is no double standard with regards to impunity, I think that would be very powerful,” Meyersfield said.
United Nations secretary-general Ban Ki-Moon has asked South Africa and Burundi, as some of the court’s earliest supporters, to reconsider their decisions. Senegal’s minister of justice Sadiki Kaba, who is current president of the ICC’s member assembly, said their withdrawal would weaken “the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity.” Botswana spoke out against neighboring South Africa’s decision, saying it believes the ICC is the only court that can really fight impunity. Nigerian and Kenyan civil society advocates have also criticized the decision.
Human Rights Watch head Ken Roth laid out what is at stake if African countries choose to leave the court, instead of trying to reform it. “The alternative to ICC prosecution in the cases it has taken on would be no prosecution at all,” Roth wrote. “No justice for the countless Africans who have been murdered, tortured, raped, or forced to become child soldiers.”
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