“In a world that seems increasingly adrift, the turmoil yet to face humanity may be far greater than any challenge we have yet experienced. We face a choice. We can safeguard our societies by standing firm on the principles of justice which anchor [the ICC]. Or we can cast away the moorings of law laid down to save the world from horror – and turn away from the screams, as impunity overwhelms men, women and children in wave upon wave of violence.”
––Prince Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights
November 16, 2016
On November 16th, Prince Zeid Ra’ad Al Hussein addressed the Assembly of States Parties to the Rome Statute of the International Criminal Court, the Court’s “management oversight and legislative body” composed of representatives of all countries that have ratified or acceded to the Rome Statute––the Court’s founding document. In his keynote speech, the High Commissioner addressed the news of recent months that the governments of South Africa, Burundi and the Gambia have officially decided to withdraw from the Court. This comes after the African Union’s (AU) decision in January 2016 to develop a “comprehensive strategy” for a “collective withdrawal” from the ICC.
As outlined by Article 127 of the Rome Statute, States Parties wishing to withdraw from the Court must submit a “written notification addressed to the Secretary-General of the United Nations” regarding secession, which will take effect after one year. Depending on the county’s own domestic legal system, the legislature must also pass a bill and seek approval from the country’s executive. Burundi and South Africa have informed the UN Secretary General of their withdrawals, while the Gambia has yet to do so officially.
Burundi, the Gambia, South Africa, and the African Union (AU) have offered several reasons to justify exit from the Court:
- The government of South Africa claims it wants no part in executing arrests warrants that could lead to “regime change.”
- The Gambian Information Minister Sheriff Bojang has stated the ICC is a racist institution, and ought to be called “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”
- Similarly, the government of Burundi has called the Court a “Western tool to target African governments.”
- The AU has also claimed that the ICC has an “African bias.”
While the social, political, and economic effects of institutionalized racism and the disparity between the colonial powers of the West and the rest of the world are still very real today, those working in international justice have a different explanation as to why these governments have decided to abandon the ICC. Their response is as follows:
- South Africa and other African nations played an important role in establishing the ICC in the first place. Much of the impunity of the nineteenth and twentieth centuries led many African countries to strongly support a permanent international criminal court.
- Many of the cases dealing with African countries before the ICC have been self-referrals––in other words, many African states want the ICC to investigate and prosecute criminals because this promotes accountability and justice when national systems fall short.
- The fact that a Western superpower like the U.S. is not a State Party to the Rome Statute is not the fault of the ICC, but instead due to the fact that the U.S. is skeptical, like Russia and China, about giving up too much of its sovereign power.
- Certain leaders of African Union member states seek impunity for their regimes, which commit crimes against their own citizens.
In his article Don’t let leaders get away with murder, Desmond Tutu, the beloved Archbishop Emeritus of Cape Town who headed the Truth and Reconciliation Commission of South Africa, summarized the issue quite well. He writes:
At first glance, when one tallies the number of African leaders versus European and North American leaders prosecuted by the court, their argument appears as if it might be plausible. When one considers the facts, however, one quickly realises that the number of Africans put on trial is an indictment of leadership and democracy in some African countries, not of the court… [this] is a contest between justice and brutal violence. Far from a fight between Africa and the West, this is a fight within Africa, for the soul of the continent. May righteous Africans raise their voices and affirm the ICC and the rule of law.
A Convenient Cover Up
The first Prosecutor of the International Criminal, Court Luis Moreno Ocampo, published an article in late October titled From Brexit to African ICC Exit: A Dangerous Trend, in which he explains in detail the complex political history motivating the withdrawing governments. He writes that, “[t]he African bias is a cover up argument like the denial of the Holocaust. It should not be considered as an argument but rather as an alibi to ignore crimes and it should be exposed as such.” For example, in April 2016, current prosecutor of the ICC Fatou Bensouda, the current prosecutor of the ICC, opened a preliminary investigation into the situation in Burundi after some 210,000 refugees fled the country due to ethnic violence. In response to the absence of collective action from the Security Council, a UN Human Rights Officer warned that “[w]e are more poorly positioned to respond to the warning signs today than we were in 1994 [before the Rwandan Genocide].”
Mr. Ocampo emphasizes the importance of the ICC, saying it “is the only institution with a mandate—and a will—to prevent and punish these terrible crimes.” He says, “that is why Burundi is now leaving the ICC… Who will defend the Tutsi victims in Burundi if the government continues attacking them? Make no mistake—the alternative to legal protection in this context is war.” The ICC was always intended to be a last resort Court––only to be utilized if States Parties’ own governments failed to adequately address genocide, war crimes, and crimes against humanity.
Last year, South Africa failed to comply with its obligation to arrest the President of Sudan Omar al-Bashir––who is wanted by the Court for crimes of genocide, crimes against humanity, and war crimes in Darfur––when he visited South Africa. With its turbulent history of impunity and hate crimes under Apartheid, South Africa was an early supporter of the Court, yet many believe the government feels isolated from the African Union and seeks to be on good terms with other African leaders. The opposition party of South Africa has already filed papers to challenge the government’s decision to leave the ICC through the Constitutional Court of South Africa. Time will tell where this leads.
In a July video released by Human Rights Watch, activists from all over Africa offered their personal views regarding the African Union’s charge that the ICC is “targeting Africa.” Stella Ndirangu of Kenya, a human rights lawyer, explains that “the reasons why we supported the establishment of a permanent court as Africa [have] not changed. The only thing that has changed is that now leaders are being held to account.” Similarly, Ibrahim Tommy of Sierra Leone, executive director of the Center for Accountability and the Rule of law, spoke of a “big clash.” He says, “the big clash is over African leaders, the powerful few, who really want impunity for themselves, versus the vast majority, in fact all of the victims of Africa’s continent, who want justice everyday.” Angela Mudukuti of Zimbabwe, an international criminal lawyer at the Southern African Litigation Centre (SALC), highlights the fact that “70% of the cases before the Court are… self-referrals, where independent, autonomous governments, have referred themselves to the ICC.” In Mudukuti’s Angela’s view, “to say that the ICC is targeting Africa I think is a misrepresentation of the situation. It’s more Africans making use of the Court they helped create.”
The crucial role of African nations in the foundation of the ICC is something Prince Zeid bin Ra’ad touched on in his recent speech to the States Parties. He recalls:
The African countries have been the backbone of this Court, and their leadership, especially in the early days, was exemplary. In fact, it was often majestic. We knew only an Africa of courage and adherence to principle. When, at the Rome conference, the US delegation, under pressure from Congress, launched a blistering attack against the independence of the Prosecutor, it produced a stunned silence among us… Who was going to respond, and how? We looked at Norway, and they were staring down at their papers, scarcely moving. We turned anxiously to The Netherlands, and they were just staring at Norway! Finally, a flag went up, and we all swiveled in the direction of the delegate from Malawi, who calmly, elegantly and deftly sketched out lines of legal reasoning powerful enough to save the moment, to our delight and relief. That is the Africa we needed then, it is the Africa we need and want today, and I am pleased many African countries, including Botswana, Cote d’Ivoire, Nigeria, Malawi, Senegal, Tanzania, Zambia and Sierra Leone have signaled they will not leave.
Responding to Understandable Criticism
Of course, the ICC is by no means a perfect institution. In the same Human Rights Watch video, African activists repeat the criticisms of many others––that the Court does not have universal jurisdiction, that superpowers like the U.S. have not agreed to it, and that it lacks an effective enforcement system, etc. This is all true. In response to these real criticisms, we should recall that the Court only entered into force in 2002. In order to deter the worst crimes and hold those accountable for the unspeakable––it needs support.
All of the privileged and powerful––in all nations––must do more to contribute to the campaign for global justice and accountability. The Court must be strengthened and built to meet the needs of a complex, global world. National governments must also work to ensure that the burden of deterring and prosecuting crimes does not always fall to the ICC. Stephen Lamony of Uganda believes that instead of leaving the Court, “African leaders should be… promoting complementarity, [and] strengthening their national jurisdictions to conduct investigations.” The same can be said of all governments around the world. Even if the U.S. is outside of the ICC’s jurisdiction, there is an understandable frustration when a superpower can invade Iraq unilaterally as the U.S. did in 2003 and face no legal consequences from the international community. But this is not a reason to abandon the Court. It is only more reason to learn, advocate, talk to friends, and work to improve our imperfect international systems.
In late October, the International Federation for Human Rights (FIDH), comprised of over 170 human rights oriented organizations, released a declaration signed by more than a hundred organizations around the world asking the African states considering ICC exit to “reject impunity” and remain in the Court. UN Secretary General Ban Ki-moon also expressed his wishes over the phone to South Africa’s President Jacob Zuma that South Africa “reconsider” its withdrawal.
When world leaders and those working closely with issues of international justice speak out in support of the ICC, they do so with the solemn memory of history on their minds. The lessons of WWII cannot be forgotten. Though the Nuremburg and Tokyo Trials established a precedent for international criminal tribunals, in the 20th century the world witnessed the horrors of the Khmer Rouge in Cambodia, the Rwandan Genocide, Yugoslavia, and so much more. We have not yet fulfilled our frequent promise of “never again.” Though the international community was able to establish ad hoc tribunals in some cases, no permanent, international court with the mandate to try individuals ever existed before the ICC. The success of the ICC means the success of peace and security for everyone, and it is so important that people everywhere––especially young people––see this now. We must stand in solidarity with victims of the most heinous crimes, and shore up the ICC with our support.