After Burundian lawmakers voted overwhelmingly to withdraw from the International Criminal Court (ICC) on October 12, South Africa and Gambia quickly followed suit and declared their own decisions to leave the court. This isn’t the first time that member nations have threatened to withdraw from the court, but none has ever followed through. This time, however, the ICC’s future seems less certain. Other ICC members, such as Kenya and Uganda, may seek to “capitalize on the momentum,” as Indiana University Professor David Bosco told the New York Times, prompting concerns that the ICC will soon face an African exodus.
To be sure, Burundi’s and Gambia’s decisions to withdraw from the court are hardly surprising. In April, the ICC opened a preliminary investigation of the situation in Burundi, which has been embroiled in conflict and violence since President Pierre Nkurunziza launched a bid for a third term in office. And Gambian President Yahya Jammeh has been known to crush political dissent, an issue that resurfaced earlier this year when his government was criticized for cracking down against political opponents. Both governments naturally want to avoid direct scrutiny.
South Africa’s intent to leave, however, is much more significant. Unlike Burundi, South Africa has never been investigated by the ICC. And whereas Gambia has historically accused the ICC of only prosecuting Africans while ignoring the crimes of Western nations, Pretoria has been a major champion of the ICC since the days of the late Nelson Mandela. In 2013, it also resisted initial calls for an African Union (AU) walkout. As the continent’s wealthiest nation, as well as a symbol of justice and reconciliation, South Africa has often played a leadership role in regional political affairs. Its decision to withdraw, therefore, deals a significant blow to the legitimacy of the court.
And that is a shame. The ICC does have flaws—such as limited political will and uneven membership—but it remains crucial to combatting impunity, especially among high-level officials that have committed unspeakable crimes. To abandon the ICC would be to betray victims of atrocities everywhere.
The ICC has faced criticism for both its design and execution. First, because the court relies on state cooperation for providing evidence and apprehending and transferring suspected criminals to The Hague, the ICC process often suffers from lack of political will. This tension was evidenced in the case of Sudanese President Omar al-Bashir. Despite being indicted on multiple counts of genocide, crimes against humanity, and war crimes committed in Darfur, Bashir traveled to numerous African countries—most of which are ICC members—without being arrested. That is a far cry from the expectation that states that each party to the Rome Statute will “cooperate fully with the Court in its investigation and prosecution of crimes.”
Still, although Bashir was not arrested during his international trips, he at least was not a guest of honor. His trip to Nigeria to attend an AU organized health summit was accompanied by a domestic court case that tried to compel the Nigerian government to hand Bashir to the ICC. The Sudanese president departed Abuja less than 24 hours after he arrived, in the middle of a two-day summit. Although Sudanese officials denied that Bashir’s departure was related to the trial, his hasty leave nonetheless reinforces the notion that he is under “country arrest.”
Similar legal efforts to detain Bashir occurred during his trip to South Africa. Despite being ordered to remain in the country while the South African court deliberated whether he could be arrested, Bashir left the AU summit early. Pretoria suffered domestic and international backlash for flouting its legal obligations. Instead of ignoring the ICC and the blowback it received, Pretoria threatened to withdraw from the court. The government’s intense reaction revealed the relevance of the court.
Second, critics have claimed that the ICC is biased against Africans. Nine of the ten current ICC investigations are in African countries. All 32 individuals indicted by the court thus far are African. On state television, the Gambian information minister called the ICC an “International Caucasian Court” that persecutes and humiliates Africans in particular.
At first blush, the court does seem to focus disproportionately on Africa. But this widely circulated criticism overlooks the fact that half of the current investigations were referred to the ICC by African member states themselves. Furthermore, whereas African countries ratified the Rome Statute en masse, many countries from regions such as Asia and the Middle East did not. As such, the court does not have jurisdiction in a lot of the places where horrendous crimes are occurring. This phenomenon leads to perhaps the most damning criticism—the ICC's spotty membership.
Although 124 countries have ratified the Rome Statute, major players such as China, Russia, and the United States have not. As permanent members of the UN Security Council, they can refer situations to the ICC, but they are themselves shielded from the court’s eye. Such uneven representation in membership, coupled with the perceived selection bias against African states, exacerbates the perception that the ICC is a tool of Western imperialism—and this is a problem that is unlikely to soon be remedied.
COURT OF LAST RESORT
Its flaws notwithstanding, the ICC has made great progress in the past 14 years and remains relevant to the pursuit of international justice. As three African states plan their withdrawal, even more support the court and its mission. Nonetheless, the ICC must continue to work to reestablish its legitimacy and credibility with member states. It can do so by actively expanding the regions in which it opens investigations. ICC Chief Justice Fatou Bensouda's investigations in Georgia, as well as the preliminary inquiries in Afghanistan, Colombia, Palestine, and Ukraine, are all welcome steps.
The ICC is intended to be a court of last resort, trying individuals only when states are unwilling or unable to do so. Strengthening regional and domestic court systems is therefore a critical step in combatting impunity. The trial of former Chadian President Hissène Habré before the Extraordinary African Chambers, the tribunal established in Senegal to prosecute crimes committed in Chad during Habré’s rule, is a notable success story. Not only did it successfully convict Habré through a fair and transparent judicial process, but it also established the precedent of one African country trying the former head of state of another African country. It was celebrated as an example of the AU’s cherished notion of “African solutions to African problems,” and as a potential alternative to the ICC for similar cases in the future.
But this actually gets to the heart of why the ICC is irreplaceable. The court’s policy is to focus on those who bear the greatest responsibility for the atrocities committed. As such, most of the individuals on the ICC’s wanted list are military commanders, political leaders, or even sitting heads of state. Because the African Union agreed in 2013 that sitting heads of states should not be prosecuted, it is unlikely that any African regional court will take up the task of trying individuals such as Bashir or Kenyan President Uhuru Kenyatta. Criminals such as Habré—former government officials who have committed atrocities during their tenure—must be brought to justice. So, too, must current heads of states who commit crimes while still in power. Abandoning the ICC when there are no existing alternatives for trying sitting high-level officials risks creating a situation in which atrocities continue with impunity.
As an international institution, the ICC operates under specific sets of guidelines and limitations. It should be assessed based on what it has been able to accomplish, given these constraints, instead of measuring it against what the ICC could do in a perfect world. The court’s many flaws must be addressed, of course, but abandoning it is not the correct approach. African countries should work within the court to push for reform. Civil society and member states should continue to work toward expanding the ICC’s membership. Despite its many ills, the ICC continues to provide justice in places where there is none. Turning our backs on it now would be tantamount to turning our backs on the victims themselves.