Is the International Criminal Court Finished?

On October 21, South African government shocked the world with the announcement that it is pulling out of the International Criminal Court because the institution was exclusively prosecuting Africans and ignoring Western injustices done to the people of Africa. South African Justice Minister Michael Masutha said that the ICC was “inhibiting South Africa’s ability to honour its obligations relating to the granting of diplomatic immunity.” The move came just days after Burundi’s embattled leader signed a similar law to that effect and was quickly echoed by Gambia, which referred to the ICC as the “International Caucasian Court.” Human rights organizations, victim groups and pundits were quick to lambast the hypocrisy of the three countries.

Several African leaders and other critics say that the Rome Statute, the 2002 treaty that established the International Criminal Court (ICC), obligates to arrest anyone sought by the tribunal but it is inconsistent with laws giving sitting leaders diplomatic immunity. They further allege that the ICC,  which is tasked with prosecuting war crimes, crimes against humanity and genocide, has disproportionately focused on Africa. Indeed, while it’s true that the court has thus far only brought concrete charges against black Africans, the allegation of an “African bias” is grossly unfounded and crumbles under closer scrutiny, as it ignores the way the ICC works and the actual political realities on the ground.

First of all, 34 of 122 member states of the ICC are African; making them the largest regional group represented in the Hague-based court. Fatou Bensouda, who is a native of Gambia, holds the powerful position of the court’s chief prosecutor. Moreover, in order for the court to start its investigations into a case, a state party of the Rome Statute must “request the prosecutor to carry out an investigation,” after which additional information may be sent to the court regarding alleged crimes. This means that the ICC cannot launch investigations unless a state or group refers an alleged case to the court’s authorities.

Accusations of the court as a vehicle for Western neo-colonial ambitions is like turning a blind eye to the fact that  investigations were undertaken with the strong support of African states. For instance, in cases involving the Central African Republic, DR Congo, Mali and Uganda, those very states themselves referred to ICC prosecutors. It’s an unfortunate reality that many major conflicts with horrendous crimes are taking place on African soil. In 2014, Africa had 16 percent of the world’s population while being host to 52 percent of the world’s armed conflicts—an increase of 12 percent compared to 2013. Add to this African states’ pivotal involvement in the founding of the ICC, and it’s no surprise that it accounts for a disproportionate number of cases on the court’s docket.

Nevertheless, it’s important to note that the ICC has been shifting its attention to other continents as well. In January, the Court said it had “a reasonable basis to believe” that crimes against humanity and war crimes were committed during the 2008 Russo-Georgian war. While the request for the authorization of a full investigation is pending, there are numerous other non-African countries under the court’s scrutiny, including Afghanistan, Colombia, and  Ukraine, as well as the UK’s actions in Iraq and Israel’s involvement in Palestine.

From these points, it becomes clear that racism is not an underlying current in the ICC’s operational history. Rather, the leaders of the countries announcing their withdrawal do so for self-serving personal reasons. In light of their abysmal human rights records, the dictatorial leaders of Gambia and Burundi both have good reasons to bail on the court in order to shield themselves from international prosecution. And South Africa’s President Jacob Zuma is using the accusations of racism as a means to distract from his many corruption scandals and to stabilize his increasingly ailing leadership by pretending to stand shoulder to shoulder with his African counterparts, and thus ensuring their backing of his own rule.

Now that the levee has broken, it’s highly likely that other countries will try to leave the ICC. Djibouti’s president, for example, is under ICC investigation over the deadly suppression of th= opposition in the runup to the presidential election for his fourth term. Ismail Omar Guelleh, who is running the country like a personal fiefdom, has also recently stepped up political repression, including fiercely cracking down on press freedom and freedom of assembly, among other infractions. Furthermore, in July the ICC referred Djibouti and Uganda to the United Nations for their failure to arrest Sudan’s strongman Omar al-Bashir on ICC orders when he visited the two countries in May this year. Al-Bashir is wanted for crimes against humanity in Sudan’s breakaway region of Darfur.

Sadly however, the requested withdrawals are setting a serious precedent that may well spell the end for the ICC as an institution. Burundi is the first member state that has turned a threat into concrete action when its lower house voted in favour of leaving the court. Since South Africa and Gambia have followed suit, fears are running high that a mass exodus will follow that would eventually undermine the Court’s legitimacy as fewer and fewer countries are willing to rely on its investigations. If that were to happen, one of the only tools for serving justice to the African people would be removed from the international system, for the ICC continues to be the only avenue for justice for the crimes they have suffered.

In the words of Human Rights Watch head Ken Roth, “The alternative to ICC prosecution in the cases it has taken would be no prosecution at all,” so, ultimately, there would be “no justice for the countless Africans who have been murdered, tortured, raped or forced to become child soldiers.” Although the ICC’s record hasn’t been impressive, yet it has some important successes on its credit. But calling its raison d’être into question for the personal gain of corrupt African leaders is telling the fact that justice is now needed more than ever.

About ICC

Member states: 124


16 July 1998: the Rome Statute of the International Criminal Court (Adopted by 120 States)
1 July 2002: Rome Statute ratified by 60 States
Headquarters: The Hague, the Netherlands
Field offices: 6; Kinshasa and Bunia (Democratic Republic of Congo); Kampala (Uganda); Bangui (Central African Republic); Nairobi (Kenya), Abidjan (Côte d’Ivoire).
Principal organs: The Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry
President: Silvia Fernández de Gurmendi
Prosecutor: Fatou Bensouda
Registrar: Herman von Hebel
Number of judges: 18 (divided into 3 chambers — the Pre-Trial Chamber, Trial Chamber and Appeals Chamber)
Term of a judge: 9 years
Official languages: 6 (English, French, Arabic, Chinese, Russian and Spanish)
Working languages: 2 (English & French)
Jurisdiction: Genocide, crimes against humanity, war crimes and crime of aggression

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