On 24th November 2016, the 15th Assembly of State Parties of the International Criminal Court (ICC) left the international community worried for the future. Vocal criticisms of the ICC, withdrawals of membership and a changing political sphere do not do well to quell the fear of the existence of the Court. Over the course of many years, State Parties to the ICC, particularly African nations, have voiced their discontent at the structure, investigations and findings of the ICC. Despite this, withdrawals have never occurred, not until this year. Looking ahead realistically, more withdrawals do not seem impossible.
Will a domino effect be triggered to threaten the very existence of the International Criminal Court?
The ICC currently has ten situations under investigation: nine of which are within Africa. Many argue that the Court is targeting the continent and failing to investigate the conduct of “The West”, exemplified by lack of action after the Iraq and Afghan Wars. Notably, this is despite the systematic grave breaches of human rights and humanitarian legal obligations, giving rise to accusations of a “victor’s justice”.
The Court has notoriously been called “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans” by the former Gambian Information Minister. How could a respected international organisation of such calibre act in this way?
At a two-day summit for the African Union held in February 2016, the chairman of the summit and the president of Chad, Idriss Déby, criticised the Court for concentrating its work on African leaders. Additionally, the Union largely supported the proposal of Kenyan President, Uhuru Kenyatta, to withdraw from the Court and “for the African Union to develop a roadmap for the withdrawal of African nations.” The creation of an African criminal court was considered, but without fruition. Yet, the level of dissatisfaction is far too palpable to be ignored by the international community. This is especially since action has been taken within the last few months, indicating that many African nations intend to act on their opinions.
The first nation to take a stand was Burundi, voting in Parliament by an overwhelming majority to withdraw from the ICC on 12th October 2016. This vote was framed on the injustice suffered by African nations. Not a fortnight later, Burundi was quickly followed by South Africa’s submission of withdrawal, stating that “obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC of obligations contained in the Rome Statute.”
With Gambia, Kenya and Uganda expressing discontent and plans to withdraw their membership of the ICC, it is clear that these nations do not see the Court as acting internationally. The ICC is even suggested by some to be nothing more than another tool of post-colonial power used to preserve the superiority of the West and to perpetuate the image of barbarian Africa.
However, one common factor of these objecting States Parties, apart from being African, is that they are being investigated, have been of interest by the ICC for international crimes committed in their territory, or are not co-operating. In addition, the above comments were wholly made by each State’s respective political wings. Are States using the withdrawal from the ICC to make political gains, while attempting to escape the criminal justice system for potential international crimes committed by, or on the territory of, the State itself?
In the case of South Africa, the failure to arrest Omar Al-Bashir, the President of Sudan, has been acknowledged as the primary reason for withdrawing from the Court. The ICC has issued two arrest warrants for Al-Bashir for counts of war crimes, crimes against humanity and genocide. Despite visiting Johannesburg in June 2015 for the African Union summit of 2015, and the issuance of an interim order by the Pretoria High Court to comply with their international obligations, they did not arrest him. Their justification was his diplomatic immunity as a head of state, hence the “incompatibility” with the interpretation of the Rome Statute.
However, in this case, it seemed clear that South Africa had an obligation to act as such, by both the ICC and their domestic judicial system. Is South Africa’s response to withdraw as a member of the ICC nothing more than a political act through a legal means? Have they failed the test and are they now blaming the textbooks?
The ICC is not fundamentally inefficient or skewed against African nations. They are charged with investigating crimes of international concern, like genocide, crimes against humanity and war crimes. They will only act if there is sufficient evidence for recommendation of investigation by the State, Security Council or the Prosecutor.
What is being ignored in the supposed targeting of Africa is that all these events did occur. In Burundi, the deaths of hundreds and over 230,000 people displaced resulting from political violence; in Kenya, crimes against humanity in post-election violence, killing thousands and displacing 350,000; in Uganda, crimes against humanity committed in the context of conflict with the Lord’s Resistance Army. Arguably, these investigations are necessary and are within the Court’s jurisdiction to do so.
In reality, the ICC is also taking some action towards the acts of Western nations, albeit only in elementary stages. Indeed, both Afghanistan and Iraq are in the preliminary examination stage for potential investigations. Yet, there is a distinct examination of the conduct of the military and not that of political leaders of the regimes, such as George W Bush and Tony Blair. This is in distinct contrast to investigations of leaders amongst African nations, such as Al-Bashir and Kenyatta, the Kenyan President. There appears to be an element of unfairness here, as the crimes have not been altered, but the apparent treatment of the perpetrators has.
The future of the ICC will be an interesting one. In the short-term, further withdrawals, particularly from Africa, could spell an examination of the conduct of the Court and potentially spur investigations of Western powers. In the long-term, the very essence of the Court being international could also be questioned, particularly if the African nations form their own regional criminal court for crimes of this nature. Should the domino effect result in this, the very operation of the ICC could be called into question, and its function could potentially be forever changed.