In mid October of this year, Burundi became the first country ever to exit the International Criminal Court (ICC) since it came into force in 2002. Burundi claimed it was exercising its sovereign right by withdrawing from the Rome Statute that created the ICC, which it is legally allowed to do under Article 127. However, many believe the true motivation to be connected to the ICC’s Office of the Prosecutor’s decision to open a preliminary investigation on alleged violations of the rule of law and human rights in the country. South Africa’s decision to withdraw from the ICC came on the heels of a decision by the country’s court of appeals concluding that the government violated its domestic and international legal obligations by failing to arrest Sudanese President Omar al-Bashir when he visited South Africa in 2015, who is currently wanted by the ICC in connection to the alleged perpetration of crimes against humanity, genocide and war crimes. The Gambia followed suit and declared withdrawal on October 25, 2016.
While the decision by these three African states to withdraw came as a shock to some, the African Union (AU) has been at the forefront of persuading its member nations to withdraw from the ICC, calling for a mass withdrawal from the ICC in January. The primary criticism is that the ICC is inherently biased against African states and African leaders, and replicates at the international level a persistent and pernicious connection between blackness and criminality. Gambian Information Minister Sheriff Bojang called the ICC an “International Caucasian Court for the persecution and humiliation of people of colour, especially African.” These criticisms do not ring hollow. All of the court’s convictions are of Africans: Thomas Lubanga, a Congolese warlord who conscripted child soldiers; Germain Katanga, a Congolese militia leader; Jean-Pierre Bemba, a Congolese politician, found guilty of crimes against humanity, war crimes and witness tampering; and Ahmad al-Faqi al-Mahdi, a member of an al Qaeda-linked jihadist group, who was convicted of destruction of cultural heritage as a war crime for destroying holy sites in Timbuktu, Mali. Additionally, of the ten full-scale investigations underway, nine are in Africa. This criticism is magnified in the ICCs decision to prosecute sitting heads of state, and many African states have argued that these indictments interfere with the ongoing peace process to mediate conflict situations.
Responding to this criticism, many ICC proponents point out that in six of the cases, African countries referred matters to the court of their own accord, while two others were referred to the court by the UN Security Council. Arguably then, the ICC is biased in favor of African victims, working in overdrive answer to calls for justice that otherwise would go unheard due to lack of resources and incapacity at the domestic level.
A second criticism points to the hypocrisy of the fact that three members of the UN Security Council, the United States, China and Russia, have not ratified the Rome Statute and thus are not directly subject to ICC jurisdiction, yet through Art 13(b) they have the power to intervene in other states affairs by referring non-member states to the Court. The UN Security Council’s veto power has in turn created a collective action problem, whereby any UN Security Council member that has a relationship with a state potentially in breach of international law can invoke their veto power to shut down investigations. This is the case with Syria, as Russia and China have exercised their veto power, vehemently opposing referring the crisis in Syria to the ICC.
Amidst these criticisms, what exactly does the exit of Burundi, South Africa and the Gambia mean for the future of the court? The move could initiate efforts to increase accountability for human rights violations both at the regional and national levels. In June of 2014, the African Union adopted the Malabo Protocol, giving the yet-to-be established African Court of Justice and Human Rights jurisdiction over international crimes including genocide, crimes against humanity, war crimes, and crimes against aggression. It should be noted however that the Malabo protocol provides for head of state immunity, contrary to the ICCs Rome Statute, yet is its focus on African institutions an excuse for leaving the ICC? Aren’t having more courts of justice and accountability better than having fewer? Mandated by the principle of complementarity, the ICC remains as a crucial court of last resort, and for many Africans presents the only avenue for justice for the crimes they have suffered until regional and domestic mechanisms can be strengthened.
Some have speculated a mass exodus looming in the future. While a few states may follow suit, particularly Kenya who painted the ICC as a “neo-colonialist” institution, it is doubtful there will be a mass exodus. Nevertheless, the ICC has come to a tipping point, facing a potential dearth of “clients” if the supply of African defendants is blocked. In order for the institution to survive, it would be forced to shift its attention elsewhere. Perhaps in an attempt to quell a mass exodus, or a desperate attempt to remain relevant, ICC Chief Prosecutor Fatou Bensouda stated in a report on Monday, November 14 that “U.S. forces and the CIA may have committed war crimes by torturing detainees in Afghanistan,” opening up the possibility that Americans could be prosecuted by the Court even though their country is not a member. Yet the possibility of this happening remains slim, as ICC prosecutors would have to jump the hurdle of complementarity, meaning that if American authorities have already conducted serious investigations, ICC jurisdiction would be blocked.
Kathryn Hutchins is a second-year student at Columbia Law School and a staff member on the Journal of Transnational Law. She graduated from the University of British Columbia with a degree in international relations and is particularly interested in international criminal law.