To side with the AU or to side with the ICC? On South Africa’s plan to withdraw from the ICC

International Criminal Court, The Hague | Image by Josef F. Stuefer

International Criminal Court, The Hague | Image by Josef F. Stuefer

The International Criminal Court (ICC) was set up in 2002 as a court of last resort to try war criminals and perpetrators of Genocide who were not tried in their home countries. To date, 124 countries have ratified the Rome Statute of the International Criminal Court. Some influential states, such as the U.S., have not.  South Africa was the first African country to ratify the Rome Statute in 2002. In the ICC’s thirteen-year history, it has only brought charges against Africans. South Africa has cited this as a concern, claiming that the court is biased against Africans. The government has further expressed concerns about balancing its obligations to the African Union (AU) with its obligations to the ICC. Now, South Africa is threatening to leave the ICC. This is not the right call; South Africa should stay.

The new chair of the African Union, President Idris Deby of Chad, took his seat on February 1, 2016. Amidst this, there were renewed calls for AU members to leave the ICC. State leaders charged that the court unfairly targets African nations. They argue that great atrocities occur in the rest of the world, but the ICC has done nothing to address those. Over the past few years, African countries have begun to openly and explicitly denounce the ICC. South Africa’s case is highly significant and notable. But its assertions are not entirely supported.

On October 11, 2015, the ruling party of South Africa, the African National Congress (ANC), announced its plan for South Africa to withdraw from the International Criminal Court. This announcement came after the much debated refusal of South Africa to arrest Sudanese President Omar al-Bashir, despite the fact an arrest warrant had been issued against him. Mr. al-Bashir had come to South Africa on invitation for a meeting of the AU. In declining to fulfill its obligation to arrest al-Bashir, the ANC stated that while it respected the founding principles of the ICC, it considered that the court has lost its direction and was in fact targeting African countries.

Al-Bashir came into the country in June to attend an African Union Summit. At the time he was, and still is, wanted by the ICC in connection with charges of genocide and war crimes committed in Sudan. A court in South Africa ordered al-Bashir not to leave the country until it decided on whether or not to arrest him. But the government of South Africa, after a lengthy meeting, decided that al-Bashir had “diplomatic immunity” because he was invited into the country to attend the AU. He was permitted to leave South Africa. The ANC later announced that it was planning to withdraw from the ICC.

The AU recently denounced the ICC outright. In an address at the February 2016 summit, Robert Mugabe, co-chair of AU, stated that the ICC is not welcome in Africa. Some African countries are pushing for mass withdrawal from the ICC. This leaves South Africa in a precarious position. During apartheid, South Africa was isolated from the rest of Africa, and now, the ANC is trying to come into accord with the rest of Africa. Many African heads of state take issue with the ICC, especially claiming that it targets African heads of state. But is it truly targeting Africa?

On the one hand, the ICC denies any discrimination. It argues that it only hears cases referred to it. But this raises the question, are African countries the only ones with grave human rights abuses that need to be addressed by the ICC? Or do African countries face a systemic problem, the problem of lack of self-governance and lack of accountability on the continent, a problem that requires outside intervention in order to protect the rights of the masses from the tyranny of the powerful?

The main criticism that South Africa, and indeed many African countries, put forward does not hold water. The notion that the ICC targets Africa alone, is simply not true. The ICC is investigating crimes committed in Afghanistan, Colombia, Georgia, Honduras, Iraq, Palestine, and the Ukraine. Another key fact to consider is that the ICC, like many international organs, can only operate in countries that have ratified the relevant treaty, in this case the Rome Statute. Thus, in countries like Syria where the statute has not been ratified, the ICC has no jurisdiction.

It is also worth noting that there is an element of self-interest in the calls by African heads of state to leave the ICC. It was only after the ICC began prosecuting heads of state that the AU began outright opposing it. Kenya made moves to withdraw from the ICC in the wake of the recent trials of Kenyan President Uhuru Kenyatta and his deputy William Ruto, for allegedly master-minding post-election violence between 2007 and 2009, causing the death of 1,200 people. The trial of former Ivory Coast President Laurent Ggabo also rekindled ill-feelings toward the ICC. While self-interest and self-preservation are arguably the reasons why many non-African countries like the United States are not parties to the ICC, unlike African countries, countries like the United States have built-in checks on the powers of their leaders.

South Africa’s plan to withdraw, though not yet solidified, could spell doom for the ICC in Africa. But despite this general negativity toward the ICC, now is not the time for South Africa, Kenya, or indeed any African country to leave the ICC.

The ICC is still relevant. Indeed it is necessary, particularly to safeguard human rights in Africa. South Africa, recognized as a proponent of human rights since coming out of apartheid, should lead by example and choose not to withdraw from the ICC. African countries have made some progress toward according human rights to their citizens. However, there is still much to be done. In the words of one African leader, “It is far better for member states to stay in the court and advocate reforms, rather than bolting and leaving millions on the continent unprotected by an international court which can step in when national institutions fail.”

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