The fourteen-year old International Criminal Court (ICC) has always had a troubled relationship with Sub-Saharan countries and their leaders. Its reputation was, however, severely tested in October 2016 when three African countries, Burundi, South Africa and Gambia, announced their decision to opt out of the court. It was for the first time that any of its 124 members abandoned the organization.
34 African countries are ICC’s largest regional bloc of states in the Assembly of State Parties (ASP) responsible for the supervision of last resort which prosecutes major violations only when domestic judiciary is deemed insufficient or unwilling to pursue justice. However, the leaving of the three African countries further intensified the debate of whether ICC is biased towards the continent.
Gambia denounced ICC on state television as “international Caucasian court”, Burundi decided to leave as a result of the court’s announcement of a preliminary examination of politically motivated violence since April 2015 and South Africa, whose withdrawal is especially disarming and disheartening, left on the grounds that that membership in the organization impeded its capacity to effectively mediate conflict and restore stability in the region.
However, African countries were initially keen on delegating part of their sovereign authority to the relatively new mechanism for global justice. The timings of 1998 Rome Statute was very good, coupled with regional receptiveness and specific domestic political and economic factors that preceded the Statute as well as the formation of the African Union in 1999. Moreover, the memory of genocide in Rwanda and the International Criminal Tribunal for Rwanda, which followed as a response to victims of gross violations of human rights, supported the Rome Statute.
In contrast, African Union members now threaten to leave the ICC if the organization does not reform itself. The desired changes should ideally include granting immunity for sitting heads of state and senior officials, making acting on the threat an individual state’s decision driven by domestic factors as well as focusing on economic partnerships with Western European states that are the ICC’s biggest financial contributors.
However, the situation is not entirely bleak for the ICC in Africa, as there are still signs that ICC has the capacity to support domestic peace processes. Although the Court is certainly in need of a reform, the choice to leave the Court will be directed by domestic circumstances rather than African disillusionment with the imperfect processes of international justice.
‘Africa and the ICC Going Forward’ – Editorial by Hlawulani MKHABELA – Institut francais des relations internationals (IFRI).