The International Criminal Court In Africa: Effective Or Poisonous?


A few weeks ago, the tiny East African nation of Burundi made headlines by withdrawing from the International Criminal Court (ICC).  It was an unprecedented move, which was risky and brazen in the eyes of many. It was not, however, unexpected.

South Africa and Gambia left a week after Burundi’s withdrawal. Further talks between African governments examining the possibilities of withdrawal have been ongoing and several nations are considering leaving.

Why would a small, African state, which is at war, be the first to leave this mega-structure of justice that is bolstered by numerous Western governments?

Burundi’s Civil Crisis

Burundi has been plagued by civil unrest since April 2015, when President Pierre Nkurunziza was permitted by the country’s highest court to run for office for a third term. In reaction, widespread anti-government protests led to human rights breaches, including 460 deaths, 230,000 people being driven from their homes and made refugees, and 3,400 arrested, including more than 600 opposers who were officially designated ‘terrorists’ for protesting. Suppression of media and internet outages have since been widespread and frequent.

In April of this year, after provocative comments by the government towards opposing voices (including threats of violence and death, with implications of genocide), the ICC’s chief prosecutor, Fatou Bensouda declared that an examination into the Burundi situation would be opened. Her office was to assess allegations of “acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances.”

In August, Al Jazeera reported that Burundi rejected an offer to have up to 228 United Nations officers monitoring the country’s increasingly violent situation. Burundi responded that “sending a foreign force without prior consultation with authorities would be a violation of the country’s sovereignty,” and that security forces within Burundi were in control of the situation. Three weeks ago, the UN launched an investigation into ‘crimes against humanity’ and the risk of genocide within the country, in addition to the ICC’s inquiries.

In October, the government of Burundi drafted a law, which was eventually passed by President Nkurunziza, allowing withdrawal from the Rome Statute (the treaty that established the ICC). The law was voted ‘support’ by 94 out of 110 legislators. “Burundi has taken a major step backward by officially withdrawing from the International Criminal Court,” stated Human Rights Watch.

What is the ICC?

The International Criminal Court is the first permanent international body that proclaims justice by prosecuting those who have committed criminal activity on a global scale. According to the BBC, the ICC focuses on large-scale criminal activities, such as genocide, war crimes, and crimes against humanity. It is considered a ‘last resort’ to intervene where national authorities are not compelled or do not have the means to prosecute, and the ICC “…seeks to complement, not replace, national Courts,” their website says. The ICC is described by the Human Rights Watch as “putting international justice on the map.”

The ICC regards fairness as a priority. For instance, the 18 judges elected from across the world are chosen for their integrity and impartiality. There are currently 121 nations with pledged membership to the ICC. However, much criticism has been placed on the Court’s history in Africa.

ICC in Africa

The activities of the ICC in Africa seem to be well-intentioned. There have been numerous atrocities committed by African leaders and the ICC has put away some of the most damaging. As of October 2016, the Court has indicted 36 individuals (nine are still fugitives) and has issued arrest warrants for 18 individuals. It must be noted that every single individual indicted by the ICC hails from a nation within the African continent.

In 2015, the African Union (AU; a supranational entity involving every African nation, except for Morocco) hosted a summit in Johannesburg for each of the AU heads of state. In attendance was Omar al-Bashir, the current President of Sudan and the only head of state who has been indicted by the ICC while holding an official seat of power. Al-Bashir travels extensively for diplomatic purposes while indicted, essentially while a fugitive, and entered South Africa for the AU summit under diplomatic immunity. According to Al Jazeera, al-Bashir was detained by authorities after the summit, under immense pressure from the ICC who had issued two warrants for his arrest. Shortly after, however, South African authorities allowed the Sudanese president to leave the country.

Al-Bashir’s departure was condemned both internationally and by the High Court of South Africa. The release of a war criminal who was guilty of genocide, responsible for the deaths of 300,000 Sudanese civilians, and the displacement of a further 2 million seemed inexplicable.

Many African governments are in agreement with South Africa’s actions, and the AU has urged member states not to cooperate with the ICC. South Africa had the choice of cooperating with the ICC or AU, and in choosing the AU, African unity took precedence over international justice.

The biggest strike yet, through ICC’s credibility, occurred on October 26th, 2016, when the Western African nation of Gambia withdrew in the wake of its African counterparts. Gambia’s information minister, Sheriff Bojang, commented on the decision: “This action is warranted by the fact 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.”

Why was this tiny nation’s decision an arrow through the heart of the ICC? Despite Caucasians, indeed, constituting a large representation of justice professionals throughout the ICC, the highest-in-charge is Chief Prosecutor, Fatou Bensouda, a fellow Gambian.

The ICC and Western Imperialism

What Bojang mentioned in his comment runs deeper than simply the perceived inefficiency of the ICC in Africa. Instead, it was a call to keep African issues within Africa.

African people suffered immensely under white colonialism for centuries. In fact, there are only two African countries which exist today that did not experience such atrocities. Many Africans believe that the power of an international court overruling at a national level is a lingering form of colonialism. The UK’s Foreign Minister, Robin Cook, mentioned to BBC: “If I may say so, [ICC] is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.”

Influential British-Jamaican barrister, Courtenay Griffiths, stated in a recent panel for Al Jazeera: “What has happened since the introduction of the ICC is a replication at an international level of that persistent and pernicious connection between blackness and criminality.”

An African Replacement

When South Africa withdrew from the ICC, Ugandan President Yoweri Museveni stated: “It is a very good decision that South Africa has done that. In fact, [ICC] is very useless.” Why then, do African countries call upon the ICC to assist in capturing war criminals (for example in Uganda’s pursuit of leaders of The Lord’s Resistance Army (LRA) in Northern Uganda), but are swift in denouncing the Court?

Perhaps it is frustration. The ICC has spent 12 years and millions of dollars on the LRA case with barely any satisfaction from Uganda. Only a handful of warlords have been brought to justice and LRA leader, Joseph Kony, remains at large. Owing to this, the ICC has been labeled ‘inflexible.’ However, when there is a powerful, non-corrupt, better-funded system on hand than one’s own national justice system, namely, the ICC, there is the danger of shirking responsibility.

Africa needs ‘African solutions’ to move towards solving issues prevalent within the continent. The African Union is a possible vehicle in enabling action to both strengthen individual national justice systems and to provide a ‘continental court’ to hear African cases.

With influential African nations now considering departure, including Kenya and Namibia, now is the time for Africa to unify and move in the direction of enabling justice effectively.