The Politics of Departure: Africa and the International Criminal Court

A view of the ICC premises. The Hague, Netherlands. April 19, 2016. (Rick Bajornas/UN Photo)

As member states of the International Criminal Court prepare to gather later this month in The Hague, the news that three among them—all from Africa—have declared their plans to leave the court will cast a long shadow over events. Following an earlier announcement that Burundi’s parliament had voted to withdraw the country from the Rome Statute (the court’s founding treaty), South Africa surprised many when it submitted its own notice to the United Nations announcing its intention to also withdraw. Last week, The Gambia followed suit.

Of the three departures, South Africa’s is undoubtedly the most damaging. Burundi’s move was less than surprising: The ICC’s prosecutor had announced earlier this April that she was commencing a preliminary examination there (a precursor to a full investigation), following allegations of grave crimes committed since President Pierre Nkurunziza declared last year that he would seek, and then later obtained, a third term in office. Perhaps not coincidentally, The Gambia—a country rife with human rights violations—will hold its own elections later this December when President Yahya Jammeh, who has ruled the country since taking power in a 1994 coup, will seek his fifth term in office.

South Africa’s declaration, however, is of a different order. Just as international law played a vital role in the country’s long struggle against apartheid, many saw the “new” South Africa as a leader in another global struggle: punishing the perpetrators of mass atrocity. The country played a key role in the drafting of the Rome Statute—because of this, the statute recognizes apartheid as a crime against humanity—and was a strong early supporter of the court. The ICC has also been an important site for the domestic enforcement of international criminal law. After ratifying the Rome Statute in 2000 and then domesticating it in legislation in 2002 (one of the first countries to criminalize ICC crimes domestically), South Africa’s courts have relied on its legislation to insist that the government has a duty to not only cooperate with the ICC in the execution of its warrants, but also to investigate international crimes perpetrated beyond its borders. One novel decision, for instance, held that South Africa’s National Prosecuting Authority has a duty to investigate credible allegations of torture by members of Robert Mugabe’s ZANU-PF party in neighboring Zimbabwe.

Yet South Africa’s record of domestic judicial leadership has also complicated the conduct of its foreign affairs, illustrated most starkly by the government’s failure—in defiance of an ICC warrant and its own domestic courts—to detain Sudanese President Omar al-Bashir when he entered the country for an African Union Summit in June 2015. Indeed, while the government’s formal position is that the ICC’s position on immunities puts it at odds with international customary law (in diplomatic parlance: “its obligations with respect to the peaceful resolution of conflict at times are incompatible with the interpretation given by the [ICC] of obligations contained in the Rome Statute”), the notice of withdrawal should almost certainly be seen as a riposte to a legal action filed by South African civil society organizations, which had sought to compel the government to execute the Bashir warrant during his visit. The issue was litigated all the way to the Supreme Court, which in March rejected the state’s appeal and ruled that Bashir should indeed have been arrested.

Where then does this leave us? To be clear, these countries are within their legal right to renounce the court. Unlike its ad hoc predecessors in Rwanda and the former Yugoslavia (which were established under the UN Security Council’s authority), the ICC is a treaty-based court: Article 127 of the Rome Statute affirms that states may “by written notification addressed to the Secretary-General of the United Nations, withdraw from [the] Statute.” Two caveats are worth noting, however. First, the statute is clear that withdrawals “shall only take effect one year after the formal notification,” meaning that the ICC would likely retain jurisdiction over the situation in Burundi notwithstanding the country’s efforts to exempt itself from scrutiny. Second, domestic legislation or statements of intent do not by themselves trigger departure and, at present, The Gambia has yet to formally initiate the withdrawal process. Conversely, the South African situation is complicated by questions of whether the government’s notice of withdrawal was, absent parliamentary approval, constitutional. Already the Democratic Alliance (the official opposition to the governing African National Congress) has lodged an urgent challenge to the procedural aspects of the withdrawal.

None of this, however, resolves the deeper political questions that confront the ICC and the international criminal law project more broadly. For years, one of the most trenchant critiques of the court has been that it is biased against Africa or, going further, that it is an institutional vessel to control and maintain the economic and military interests of, depending on one’s point of view, the “global North” or “the West.” Indeed, when announcing its withdrawal, The Gambia’s information minister denounced the ICC as an “International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”  Similarly, when Burundi’s parliament voted to quit the court, one lawmaker called it “a political tool used by powers to remove whoever they want from power on the African continent.”

While there is little about the court’s record to date that would help defend against this accusation—nine of its 10 open investigations concern African states, and most prosecutions to date have been notably one-sided—at least some of these interventions (Uganda, the Democratic Republic of the Congo) have been at the behest of domestic political elites, who have also used the cover of ICC intervention to protect or further their own political interests. Even in Kenya, the failed proceedings against former political rivals Uhuru Kenyatta and William Ruto (now president and deputy president, respectively) allowed them to forge a new political alliance vilifying the ICC. Moreover, it is quite likely that more non-African cases will come onto the ICC’s docket, potentially unsettling this neo-colonial critique. The prosecutor’s current investigation in Georgia, for instance, pits it directly against Russian interests, while recent reports suggest that the office is also poised to soon open an investigation into crimes in Afghanistan, which could encompass the conduct of United States soldiers there (although the US is not itself a party to the Rome Statute, Afghanistan—on whose territory the alleged abuses occurred—acceded to it in 2003).

Ultimately, though, ICC membership is based on the consent of states: They may sign the Rome Statute, or they may “unsign” it, as the US famously did. While it seems unlikely that the events of the past few weeks will trigger a mass withdrawal of African states (though much will likely depend on the next African Union summit in January), some states may well choose to depart the ICC, particularly as their participation in a legal system that threatens an individual leader’s grip on power comes into sharper relief. At the same time, other states may well join (or rejoin) the court. In short, the ICC remains an experiment—and it is only one among many—in an unfolding, unequal, and still quite fragile project of global governance. To reduce that project to the ICC alone gives the court both too much credit and the project itself too little.

Christian De Vos is an Advocacy Officer with the Open Society Justice Initiative and a Co-Editor of Contested Justice: The Politics and Practice of International Criminal Court Interventions. The views herein are his own and do not reflect those of the Open Society Foundations.