ICC: Beyond the threats of withdrawal

Sometime last year, three African countries—Burundi, the Gambia and South Africa—signalled their intention to leave the International Criminal Court (ICC). There was fear that more countries would follow.

After years of criticisms, it appeared as if aggrieved African countries would be making good on their repeated threats to leave the court.

In October 2016, Burundi and South Africa formally wrote to the United Nations Secretary-General to communicate their decision to withdraw from the ICC. Around the same time, The Gambia, a tiny country tucked inside Senegal off the West African coast, also indicated that it would withdraw, only to reverse course almost immediately after a newly elected government assumed power.

Since then, the feared exodus from the ICC by African countries has not materialized. Not even after the African Union (AU) reportedly agreed on a strategy calling for a collective withdrawal from the court. Meanwhile, compelled by its own courts for having failed to follow proper legal procedures, South Africa ended up revoking its notice of withdrawal in March.

Distrust

“A bunch of useless people,” Yoweri Museveni, the Ugandan president, once called the ICC, while his Rwandan counterpart, Paul Kagame, said the court was never about “justice but politics disguised as international justice.”

President Uhuru Kenyatta of Kenya, who once faced indictment by the ICC, castigated the court as a “tool of global power politics and not the justice it was built to dispense.”

Dissatisfaction with the court lies in the perception that the ICC has disproportionally targeted Africans and does not respect the politics and sovereignty of African countries. Nine out of the 10 cases currently before the court involve African countries.

Fatou Bensouda, the ICC prosecutor, who investigates and prosecutes crimes under the jurisdiction of the court, namely genocide, crimes against humanity, war crimes and crime of aggression, routinely dismisses those criticisms, saying that since most of the cases were initiated by the countries themselves, it makes no sense to accuse the court of bias.

Still, the court appears to be sensitive to the criticisms and has now invited scholars to debate the subject in an online forum.

After all the pronouncements and threats, however, only Burundi is on course to leave the ICC before the end of this year. Opinions are divided among African countries and among citizens within the countries advocating withdrawal. Even as the AU was reported to have adopted a mass withdrawal strategy, some countries, such as Nigeria, opposed it, particularly the idea of leaving en masse.

“Nigeria is not the only voice agitating against it; in fact, Senegal is speaking very strongly against it. Cape Verde and other countries are also against it,” remarked Geoffrey Onyeama, Nigeria’s foreign affairs minister, speaking at the end of the AU summit held in Addis Ababa in January. “Each country freely and willingly acceded to the treaty,” he said. “So each country, if they want to withdraw, has the right to do that individually.”

“Whatever problems the ICC might have don’t justify its vilification,” Désiré Assogbavi, a human rights activist, and a representative of Oxfam International to the African Union, told Africa Renewal.

Oxfam and a group of African civil society organisations that formed a global coalition for the ICC, started campaigning in 1995 for the strengthening of international justice. The coalition successfully lobbied for the adoption of the Rome Statute of the International Criminal Court in 1998, which led to the creation of the ICC in 2002.

“Granted, almost all the cases before the court were initiated by African countries themselves, including the first historic case by Uganda. [So] to now turn around and vilify the ICC smacks of hypocrisy,” says Mr. Assogbavi.

Indeed, in January 2004, President Yoweri Museveni and the then ICC prosecutor Luis Moreno Ocampo appeared together at a confirmation press conference in London to announce that the ICC was going after the Lord’s Resistance Army (LRA)—a vicious rebel group in conflict with the central government. Soon the Democratic Republic of the Congo would follow suit, followed by the Central African Republic, Côte d’Ivoire and Mali.

In the case of Sudan and Libya, the ICC sprang into action after both cases were referred by the United Nations Security Council, while for Kenya, the cases were opened at the initiative of the prosecutor but with the full cooperation, at least initially, of the government.

So why is the court being criticised for taking up African cases, a majority of which were instigated by the countries themselves?

At the heart of the distrust lies what Allan Ngari, a senior researcher at South Africa’s Institute for Security Studies refers to as “the elephant in the room: immunity for sitting heads of states.”

At one point in the short history of the court, two sitting African heads of state were indicted. Charges against Mr. Kenyatta, the Kenyan president, and his deputy William Ruto were later shelved, but Omar al-Bashir, the Sudanese president, remains under indictment, while Laurent Gbagbo, former president of Côte d’Ivoire, is currently on trial.

Burundi allegedly decided to leave the court in protest over the ICC prosecutor’s move to launch investigations against its leaders. Yahya Jammeh, then the president of Gambia, may have been motivated by similar concerns. And after being censored by its own court for failing to execute an ICC arrest warrant against the Sudanese president as he visited the country, South Africa decided that it could no longer be part of the Rome Statute.

Justice and politics

Critics of the ICC point out that both Sudan and Libya were referred to the court by the UN Security Council, where three of five veto-wielding countries (China, Russia and the United States) are not even members of the court. While the Security Council was quick to have leaders of the two countries indicted, the critics have observed that efforts to refer countries like Syria have so far been thwarted by some of these countries.

Even steadfast supporters of the court, such as former UN Secretary-General Kofi Annan, agree with some of the criticisms. Writing in the Guardian, a UK news publication, he acknowledged several weaknesses of the court.

“Most egregiously,” Mr. Annan wrote, “only two of the five permanent members of the UN  Security Council—the UK and France—are signatories to the Rome Statute [and therefore members of the ICC], open[ing] the court up to accusations of double standards.”

Nonetheless, Mr. Annan strongly advocates for the continent to stay engaged with the court, saying, “ICC remains the continent’s most credible court of last resort for the most serious crimes.”

His views are espoused by a majority of civil society organizations in Africa, doubtful of their own governments’ abilities to prosecute serious crimes, even as African Union members push for the establishment of an African Court to try international crimes.

To many observers, however, reforms may be just what aggrieved countries have been calling for all along. As early as 2013, Kenya asked for sitting presidents not to be indicted, while South Africa pressed for their immunity against prosecution to be respected.

Last year, in the aftermath of its failure to arrest the Sudanese president, the South African government indicated that the “main problem with the ICC is the obligation to arrest heads of state.” That obligation, said Michael Masutha, the minister of justice, was inconsistent with the international practice of diplomatic immunity.

In March 2017, even as Pretoria revoked its notice of withdrawal, a group of South African former constitutional judges was lobbying parliament against withdrawing from the ICC.

Justice Zak Yacoob, one of the former judges, framed the issue at the time: “In joining the ICC, South Africa made the choice of saying some human rights violations are so gross, so bad, so punishable, that no leader, even if he or she was a state leader at the time, should be able to get away with it.” The ICC judges allegedly said, “The ICC works within an imperfect framework. However, leading nations like South Africa and its parliamentarians should spearhead initiatives to improve the court. This is something that can only be done from within the system.”