The International Criminal Court (ICC) seated in the Netherlands has recently suffered numerous blows to its legitimacy as African nations like Burundi, the Gambia, and South Africa all vowed to leave the Court in 2016. The countries’ decisions to withdraw from the Rome Statute, or the foundational legal document of the ICC, comes as a result of the ICC’s, arguably, prejudiced focus on African nations.
That is to say, a majority of the cases that have ongoing investigations by the ICC include a majority of African nations, including the Central African Republic, Mali, Côte d’Ivoire, Libya, Kenya, Sudan, Uganda, and the Democratic Republic of the Congo. The only other nation that has an official investigation at present is Georgia. The lack of diversity, in terms of non-African nations, is discouraging considering the number of states that have ratified the Rome Statute – 124, to be precise. However, perhaps the largest factor that undermines the legitimacy of the Court is related to the lack of great powers party to the Rome Statute.
In particular, the United States, Russia, and China (who are the usual suspects) are not party to the Rome Statute. However, this is extremely problematic as these countries have the potential to have serious complaints launched against them, but simultaneously have the power to block the UN Security Council Resolutions, which would invite the Court to investigate the crimes.
With all of this in mind, it is not hard to understand why some nations in Africa wanted to secede from the ICC. At present, Burundi remains the only state, which has still set its course on leaving the ICC. In contrast, the Gambia has decided to halt its withdrawal and, according to the Globe and Mail as of February 22nd, South Africa has stalled in its attempt to leave the ICC. According to the Globe and Mail, the South African government “violated [its] constitution by announcing its withdrawal from the ICC last year without seeking approval from parliament.” This considerably weakens the attack on the ICC’s legitimacy, but the ICC still has yet to address its fundamental legitimacy problem.
In brief, the Court’s aim is clearly outlined in the preamble of the Rome Statute, which is to “put an end to impunity for the perpetrators of the most heinous crimes… and thus contribute to the prevention of such crimes.” These aims cannot possibly be achieved with its present legitimacy deficiency, but moreover, cannot occur without the largest membership possible, which is why the withdrawals of the Gambia, Burundi, and South Africa posed such a threat. The recent interventions of Canada in Burundi, the Gambia, and South Africa on the behalf of the ICC have done much to try and bolster the reputation and standing of the Court but, in reality, does not address the Court’s prevailing gap in legitimacy. So, it seems that at present the finding of the South African court is favorable to the ICC, but its stature in the international criminal legal sphere and in the international arena remains tenuous and strongly reliant on the political will of its signatories.