Withdraw From The ICC, Then What?


About 2 weeks ago, South Africa became the latest African country to indicate its intention to pull out of the ICC (International Criminal Court).[1] This happened just days after Burundi signed its intention to leave.[2] South Africa claimed it was leaving because being part of the ICC was incompatible with its efforts to mediate peace in Africa.[3] Other countries that have indicated their intention to pull out of the ICC are Kenya, Namibia, and Gambia.[4] The International Criminal Court (ICC) entered into force on 1st July 2002, as a result of an international effort to combat impunity for international crimes that deeply shake the conscience of humanity.[5] The court sits in the Hague, is permanent, and has jurisdiction to prosecute individuals accused of committing war crimes, crimes against humanity, and genocide.[6] Under Article 17 of the Statute, a case is inadmissible before the Court if a State with jurisdiction is either genuinely investigating it or prosecuting alleged perpetrators or has already done so.[7]

Intervention by the court can only take place where relevant national criminal courts have been unwilling or are unable to conduct a genuine investigation or prosecution and the crimes in question must be the most serious that concern the international community as a whole.[8] The court may also intervene in situations referred to it by the United Nations Security Council, even with respect to crimes committed on the territory of or by nationals of non–State parties.[9] There are currently 124 State parties to the ICC, 30% being African countries.[10] A State party that would like to pull out of the ICC writes to the Secretary-General of the United Nations, hands the letter in, waits a year, and is then no longer a member. However, the State party must still pay any fees owed and cases involving its citizens continue.[11]

It has long been the argument that the ICC is a tool of neo–colonialism and that it has targeted the African continent. The Gambian Information Minister Sheriff Bojang went as far as claiming that the court is an ‘International Caucasian Court’ formed to persecute and humiliate people of colour, especially African leaders.[12] Nanjala Nabola argues that by the numbers alone, assuming that conflicts occur with similar frequency in each inhabited continent, a national of a member State found in violation of the provisions of the Statute is statistically more likely to be from Africa than from any other continent.[13] Also, the reasons for which these African leaders are prosecuted are not newly emerging crises that the world has just been notified of. Further, indicted leaders like Joseph Kony of Uganda are not blameless.[14] The problem is, therefore, not that the ICC has a problem with Africa, but that Africa, which comprises the biggest percentage of its membership, has a problem with it.

For international courts to adjudicate effectively, members must cooperate with them. In DRC’s former Vice President Jean–Pierre Bemba Gombo’s case on crimes against humanity committed during the 2002-2003 war in the Central African Republic, for example, the CAR cooperated by ratifying the Rome Statute, referring the 2002–2003 violence to the ICC to investigate, handing over court documents from the CAR’s own prosecution of Bemba, and allowing the ICC to conduct site visits in the CAR and protecting witnesses. [15] With Kenya, the story was different and ICC Prosecutor Fatou Bensouda stated that the country did not cooperate, which led to frustration with the cases against those deemed to have been behind the country’s post-election violence in 2007–2008.

The ICC seemed to be the pride of many African countries when they referred cases of opposition figures and rebels to it but, when the court showed that it would not play favourites and began to go after sitting presidents, the tables turned and criticism followed.[16] Come 2013, at an African Union extra–ordinary general meeting in Addis Ababa, the leaders decided that the ICC was interfering in the internal affairs of member States.[17] The ICC investigation of President Uhuru Kenyatta and his Deputy William Ruto was condemned as a violation of the country’s sovereignty.[18]

With conflict on the African continent being a constant menace, it is evident that the continent needs the ICC. Individual States have failed to address such conflict and regional bodies, such as the East African Community and the African Union have also failed. The East African Community, for example, is yet to succeed in addressing the South Sudan conflict and the volatile situation in Burundi. It seems that the continent is keen on protecting those at the top, despite the crimes that they commit and the impact that such crimes have on those against whom they are committed. In dealing with the South Sudanese conflict, for example, it would be a step in the right direction to freeze the assets of top leaders of neighbouring countries, such as Kenya. However, little has been done. The move by South Africa, Namibia, Burundi, Gambia, as well as Kenya to withdraw has not been followed by proposals addressing an alternative to the court. If indeed these countries are ambassadors of justice for humanity, they have not shown it. The African Union, for example, could work on establishing an African Criminal Court. Further, the decision to withdraw should reflect the will of the people in the country that wishes to withdraw and not simply be a political one. The continent could also have regional criminal courts within the different blocs; so that interference in their affairs by external parties does not happen.

 

[1] Azad Essa, The Washington Post ‘South Africa’s withdrawal from the International Criminal Court reeks of hypocrisy’, https://www.washingtonpost.com/news/global-opinions/wp/2016/10/26/south-africas-withdrawal-from-the-international-criminal-court-reeks-of-hypocrisy/

[2] Ibid

[3] N 1

[4] iBID

[5] Lynn Gentile, Chapter 4 ‘Understanding the International Criminal Court’ pg. 99

[6] Ibid

[7] N 5

[8] N 5, pg. 100

[9] Ibid

[10]March 28th 2012,Global Policy Forum,  Nanjala Nabola, ‘Does the ICC have an Africa Problem?’ https://www.globalpolicy.org/international-justice/the-international-criminal-court/general-documents-analysis-and-articles-on-the-icc/51456-does-the-icc-have-an-africa-problem.html

[11] Justice Hub, Wednesday, July 22, 2015, ‘How to Leave the ICC’, https://justicehub.org/article/how-leave-icc

[12] October 26 2016, The two – way, Rebecca Hersher, ‘Gambia Says It Will Leave The ‘International Caucasian Court’, http://www.npr.org/sections/thetwo-way/2016/10/26/499433335/gambia-says-it-will-leave-the-international-caucasian-court

[13] N 1O

[14] Ibid

[15] Courtney Hillebrecht and Scott Straus, March 28, 2016, The Washington Post ‘Last week, the International Criminal Court convicted a war criminal. And that revealed one of the ICC’s weaknesses’, https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/28/last-week-the-international-criminal-court-convicted-a-war-criminal-and-that-revealed-one-of-the-iccs-weaknesses/

[16] Nigerian Tribune, November 1, 2016, ‘The exit of African countries from ICC’, http://tribuneonlineng.com/exit-african-countries-icc/

[17] Ibid

[18] N 16

Hawa Gaya

Hawa Gaya

Lawyer, lover of the environment and a beliver in peaceful dispute settlement
Hawa Gaya

Latest posts by Hawa Gaya (see all)