On African Opposition to the International Criminal Court

In this picture, there are at least two African leaders who risk prosecution by the ICC. Guess who?

In this picture, there are at least two African leaders who risk prosecution by the ICC. Guess who?

Now in its thirteenth year, the International Criminal Court (ICC) continues to face accusations that it is unfairly biased towards African countries. Created by the Rome Statute in 2002 following a century of well-documented atrocities ranging from the Holocaust to Srebrenica to the Rwandan Genocide, the ICC was founded on the noble principle that the world would never again allow genocide, crimes against humanity, war crimes, and the crime of aggression to go unpunished. The court, based in the Hague, has the authority to step in, investigate and prosecute such crimes in states "unable" or "unwilling" to do so themselves.

Distressed over the 1994 Rwandan Genocide and the traumas of apartheid, African countries were some of the earliest supports of the ICC; however, since 2006, African support for the court has wavered and has been replaced with accusations of selective prosecution and bias. 

Last year, at an African Union summit in Equatorial Guinea (a country that has its own fair share of human rights abuses), African heads of state and officials voted to grant sitting leaders and senior officials immunity from prosecution.

Earlier this week, the ruling party of South Africa, a country noted its famously progressive and rights-heavy Constitution, announced its plans to leave the ICC. Obed Bapela, an deputy minister and member of the African National Congress (ANC), said the ICC had “lost its direction” and the ruling African National Congress (ANC) wanted to withdraw the country from the court. According to Bapela, "South Africa still holds the flag of human rights, we are not lowering it.” This declaration comes on the heels of recent criticism following  Sudanese president Omar al-Bashir's visit to South Africa. Despite being the subject of an international warrant following accusations of genocide and war crimes,When al-Bashir was permitted to leave South Africa although thee was a South Africa court order to detain him.

Some points that African detractors of the ICC often raise and my counter-points:

  1. "The ICC has only opened investigations in African countries." The ICC does not only investigate African war crimes. The court is also conducting preliminary examinations in a number of countries including Afghanistan, Georgia, Colombia, Honduras, and Korea. Moreover, of the 8 investigations that the ICC has opened, 5 of the 8 cases before the court (Uganda, DRC, Central African Republic, Ivory Coast and Mali) have been self-referrals. In Kenya, the Kibaki government agreed to the prosecution at the urging of the former UN Secretary-General Kofi Annan, a Ghanaian who mediated the end of Kenya’s post-election chaos. The court does not open investigations where credible national investigations or prosecutions are already taking place, but in many African countries, where there are often weak judicial systems, such credible investigations typically do not take place. 
  2. "The ICC doesn't prosecute cases in Western countries." Only countries that are signatories to the Rome Statute can be prosecuted for war crimes. The United States is not currently a signatory to the Rome Statute. This line of thinking is therefore irrelevant. 
  3. "The court is a neocolonial, imperialist puppet." Take a look at the court's composition. The chief prosecutor, Fatou Bensouda, is Gambian. The president, Silvia Alejandra Fernández de Gurmendi, is Argentinian. Her predecessor, Song Sang-hyun, was South Korean. Sidiki Kaba, the former Minister of Justice of Senegal, is the current President of the Assembly of States Parties to the Rome Statute of the International Criminal Court. Kaba was elected as a consensus candidate from the African States Parties. 

    In the case of Sudan, which has drawn the ire of many African heads of state, there is little doubt that crimes against humanity were committed in Darfur with al-Bashir’s knowledge and approval. In 2004, the African Commission on Human and Peoples’ Rights, the AU’s human rights body, found that Sudan's attacks on the civilian population qualified as war crimes and crimes against humanity.

For South Africa to oppose the ICC is to pander to pan-Africanism in the name of shielding dictators and heads of state who act without impunity. The ICC has admittedly had its fair share of stumbling blocks, but such experiences are typical of a new and growing organization. After all, Rome (and the Rome Statute) wasn't built in a day. Idealism must be coupled with patience. 

Despite the ANC's declaration, South Africa is still unlikely to leave the ICC. When the rainbow nation adopted the Rome Statute in 2002, it created the "ICC Act" (Act 27 of 2002). The preamble of the Act addresses South Africa's commitment to address atrocities in light of its history of apartheid:

MINDFUL that –
Throughout the history of human-kind, millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law;

the Republic of South Africa, with its own history of atrocities, has, since 1994, become an integral and accepted member of the community of nations; 

the Republic of South Africa is committed to – bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court.... carrying out its other obligations in terms of the said Statute.

In order to exit the ICC, South Africa would need to repeal its domestic law, after which its president would be required to write a letter of withdrawal from the Statute to the Secretary General of the United Nations and await its ratification. Given the long nature of this process, it is unlikely that South Africa will withdraw its support despite ANC declarations to the contrary. 

If African leaders truly want to stop cases from being tried in front of the ICC, they must develop more robust national judicial systems and demonstrate capacity through a strong African Court of Justice and Human and Peoples’ Rights, which has the power to prosecute regional cases. 

Akinyi OchiengComment