A Crisis of Faith: The International Criminal Court in Africa

On October 20th 2016, South Africa became the second African nation to publicly withdraw from the International Criminal Court, as Foreign Minister Maite Nkoana-Mashabane made the country’s formal notification to the United Nations Secretary General, Ban Ki-Moon. South Africa follows in the footsteps of Burundi as tensions have risen surrounding the nature of the court, including accusations of modern-day colonialism and allegations of racism. As of October 26th, the Gambia has followed suit, with its information minister, Sheriff Bojang, offering the damning analysis that “the ICC, despite being called the International Criminal Court, is in fact an international Caucasian court for the persecution and humiliation of people of colour, especially Africans.”

The International Criminal Court (ICC) was established in 1998 via the Rome Statute as a response to a wave of intense civil violence during the 1990s and was intended to provide a system in which to try cases of war crimes, genocide, and crimes against humanity. Although relatively young in the history of the United Nations, the court finds its roots in the earliest UN legislation: the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), both of which were ratified by the UN General Assembly in 1948. That said, the post-Kosovo and post-Rwanda context in which the court was established cannot be ignored, despite the long history that came before. Although both were investigated by tribunals separate from the ICC, the atrocities that occurred spurred on the creation of an international justice system that would investigate and prosecute crimes against humanity where state governments could not, or would not, do so.

Permanent Premises of the International Criminal Court in the Hague, Netherlands, UN Photo by Rick Bajornas

In theory, South Africa’s withdrawal is a result of its objection to the suspension of diplomatic immunity for individuals who have been indicted by the court. The country welcomed the Sudanese president, Omar Bashir, to an African Union summit in 2015, despite the ICC’s 2009 indictment of President Bashir over atrocities in Darfur; as, under local South African law, heads of state are offered diplomatic immunity. Since the end of apartheid in 1994, South Africa has been a leader on the continent in terms of supporting human rights, especially those of the LGBT community, and such a public display of disassociation is naturally troubling. The concern among international leaders is that, as the ICC’s former prosecutor Luis Moreno Ocampo puts it, the withdrawal of major states like South Africa and Burundi gives leaders a free pass “to commit genocide… under the Zuma leadership South Africa [has] decided to cover up the crimes and abandoned African victims.”

Yet African leaders tell a different story. Beneath the surface and despite its supposedly global nature, the African continent can arguably be called the ICC’s raison d’être. Indictments issued by the ICC disproportionately affect Africa, and thus far the only individuals to be convicted by the court have been Africans: Congolese Germain Katanga, Jean-Pierre Bemba, and Thomas Lubanga; and Malian Ahmed al-Faqi al-Mahdi. At a meeting of the African Union in 2013, the Prime Minister of Ethiopia, Hailemariam Desalegn, called the court a racist institution, and accused the court of “hunting Africans” after the ICC refused to halt proceedings in the trial of Kenya’s President Uhuru Kenyatta, accused of crimes against humanity. These accusations of racism are countered by the United Nations, who argue that leaders are only now objecting to the ICC out of fear their crimes might be the next to be investigated, such as those of Burundi’s President Pierre Nkurunziza, who stands accused of being party to the torture and murder of government opponents.

Now-President of the ICC Judge Silvia Fernández de Gurmendi (center) at the trial of former Ivorian President Gbagbo in 2011, UN Photo by Peter Dejong

The problems with the ICC in Africa, however, run deeper than this explanation gives credit for, and the impact on human rights spreads much wider than just the South African state. The region was instrumental in creating the court, but support has waned over the years as leaders and governments perceive the ICC to be turning a blind eye to atrocities committed by the West. The Gambia’s Information Minister pointed to the case of the coalition invasion of Iraq, and named former British Prime Minister Tony Blair in particular as an example of the ICC failing to prosecute in the West. “There are many western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single western war criminal has been indicted,” he said. With China, Russia, and the United States failing to ratify the ICC, it seems unfair to many Africans that their nations are targeted, while there is no means to hold the world’s most powerful states accountable if necessary.

The concerns about the commitment to justice for atrocities in South Africa, Burundi and the Gambia are valid, but so too are the criticisms of the ICC for being too focused on Africa. Whilst the political and diplomatic back-and-forth continues, failure to reach suitable conclusions on either side of the table ultimately only jeopardises human rights in the region. Furthermore, it puts in a precarious position the idea of justice for the victims of crimes against humanity, a dangerous precedent to set in an era of instability and uncertainty. As the situation in Africa regarding the ICC continues to develop, Human Rights Watch offers online coverage of how the continent is responding to this major change in the status quo.

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