Currently, 124 countries have ratified the Rome Statute of the International Criminal Court. But the USA, China and the Russian Federation for example have not. 139 States have signed the Rome Statute. Of those states, 34 are African states (comprising 30 percent of the court's membership), 28 States are Latin American and Caribbean States, 19 are Asia-Pacific States, 18 are Eastern European states and 25 are from Western Europe and other States. In the past few days three African countries have announced that they intend to withdraw from the ICC. On October 18, 2016, Pierre Nkurunziza, the President of Burundi signed legislation on withdrawal from the ICC.
Currently, 124 countries have ratified the Rome Statute of the International Criminal Court. But the USA, China and the Russian Federation for example have not. 139 States have signed the Rome Statute. Of those states, 34 are African states (comprising 30 percent of the court's membership), 28 States are Latin American and Caribbean States, 19 are Asia-Pacific States, 18 are Eastern European states and 25 are from Western Europe and other States.
In the past few days three African countries have announced that they intend to withdraw from the ICC. On October 18, 2016, Pierre Nkurunziza, the President of Burundi signed legislation on withdrawal from the ICC after the court declared that it would investigate allegations regarding political violence since April 2015. It is said that at least 430 people were killed due to political violence after the re-election campaign of President Pierre Nkurunziza.
On October 21, 2016, two weeks after the announcement of Burundi to withdraw from the ICC, South Africa also announced that it submitted a notification of its withdrawal to the UN secretary-general - without public debate or parliamentary approval. On October 24, Gambia also announced its intention to withdraw from the ICC.
Paragraph 2 of article 127 which is concerned with withdrawal, and paragraph 7 of article 87 of the Statute which is concerned with requests for cooperation, show that States like South Africa and Burundi still have a duty to cooperate with the Court; withdrawal does not discharge States from its obligations.
While some members of the African Union (AU) such as Gabon, Mali and Niger have been cooperative and supportive of the ICC, other AU member states are not as cooperative. Several other African States have threatened to withdraw from the ICC. The Botswanan foreign minister Pelomoni Venson-Moitoi, a candidate to become the next AU chief, stated that she believed that an African war crimes court could be beefed up to work alongside the ICC.
African states have withdrawn or are thinking of withdrawing from the Rome Statute for several reasons. For example, the ICC is accused of being too focused on prosecution of Africans. The six cases that are ongoing or that are about to begin all concern the African continent. All four persons who have thus far been convicted by the Court are Africans. All 32 who have been indicted are also African. However, recently, preliminary investigations have begun elsewhere but attempts to refer other nations including Syria to the court have not been successful.
African countries have complained that the ICC is biased against African States and that African nations are being ‘targeted disproportionately’ by the ICC. Several African nations have accused the Court of being a ‘neo-colonial’ institution; a ‘paternalistic’ institution; of being an international legal instrument that would promote Western interests. For example, Gambia called the Court an "International Caucasian Court for the persecution and humiliation of people of colour, especially Africans".
Another reason for withdrawal is for example the debate in South Africa over the refusal to arrest and extradite the President of Sudan, Omar Al-Bashir when he visited Johannesburg to attend a summit of the African Union (AU) last year. The International Criminal Court (ICC) issued a warrant of arrest for President Al-Bashir on seven counts of war crimes and for committing crimes against humanity in Darfur, Sudan. The Supreme Court of South Africa later said that the failure to arrest Bashir “was inconsistent with South Africa’s obligations in terms of the Rome Statute...and unlawful.”
Many African States and African groups and international organizations do not support the decision of South Africa to withdraw. South Africa was long considered the "global leader on accountability for victims of the gravest crimes.” Mossaad Mohamed Ali of the African Center for Justice and Peace Studies for example said that by withdrawing from the ICC, South Africa is sending a wrong message to victims: “As South Africa is one of the founding members of the court, its announcement sends the wrong message to victims that Africa’s leaders do not support their quest for justice.”
Stella Ndirangu of International Commission of Jurists-Kenya considers the decision of South Africa to withdraw from the ICC "a direct affront to decades of progress in the global fight against impunity". It is questioned whether the decision of South Africa to withdraw is constitutional. Jemima Njeri of the Institute for Security Studies International Crime in Africa Program expressed her concern that the government of South Africa sends a signal that it is "oblivious to victims of gross crimes globally."
Kaajal Ramjathan-Keogh, Southern Africa Litigation Centre executive director considers the ICC as an "important pillar of international criminal justice". She regards South Africa's withdrawal as an "unfortunate disregard for human rights and the fight against impunity". There aren't any regional courts with criminal jurisdiction, so the "victims of these heinous crimes will find no respite domestically, regionally, and internationally", Kaajal Ramjathan-Keogh states.
Withdrawing from the Rome Statute could be regarded as a retrogressive step - considering the former status of South Africa as a champion of human rights and international criminal justice. In the opinion of Ramjathan-Keogh this "raises great concern about the government’s priorities with regard to matters of justice, accountability and the prevention of egregious crimes".
The President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Mr. Sidiki Kaba, stated that he regretted the decision of South Africa and Burundi to withdraw from the Statute. He invites South Africa and Burundi to "reconsider their positions". He also urges them "to work together with other States in the fight against impunity, which often causes massive violations of human rights," According to Mr. Kaba, the "disturbing signal" might lead to the decision of other States to withdraw from the Rome Statute and thus weakening the only permanent International Criminal Court that can prosecute international crimes.
In a press release of October 22, 2016, Mr. Kaba asks the international community to remain united in order to: "face the enormous challenge of preventing the commission of such crimes, prosecuting the alleged perpetrators, whoever they are and wherever they are, to ensure peace, stability and security of our States". He stresses that the ICC "needs the strong support of the international community and the cooperation of States to ensure its effectiveness and strengthen its credibility". According to the press release of the ICC, Mr. Kaba calls upon all States parties to remain active members and other States to ratify the Rome Statute in order to ensure the right to universal justice to all victims of mass crimes.
Several initiatives to encourage States to cooperate with the ICC have been taken. For example, the African Union urges states to help the ICC. Pelomoni Venson-Moitoi, the foreign Minister of Botswana, is of the opinion that States should work towards reforming the Court instead of pulling out. Netsanet Belay, the Research and Advocacy Director for Africa of Amnesty International encourages African states to cooperate and work constructively to settle legal disputes: “Rather than joining this drastic march away from justice, other African states should follow the lead of Botswana and many concerned African member states which have encouraged countries to work constructively with the Court to resolve any legitimate issues.”
Even though sadly several African states have chosen to withdraw from the ICC or consider withdrawing from the Rome Statue, fortunately, still a large number of countries support the ICC. When States decide to withdraw from the Rome Statute of the ICC, this could be considered a major loss for both Africa, the ICC, and especially the victims of international crimes.
- Bassiouni, M. Cherif, The Statute of the International Criminal Court: a Documentary History, Ardsley, NY, Transnational Publishers, 1998
- Dangnossi, I., La Cour Pénale Internationale à l'Épreuve de la Répression en Afrique : des Préjugés aux Réalités , Paris, L'Harmattan, 2015.
- Hoile, D., Justice denied : the reality of the International Criminal Court, London, The Africa Research Centre, 2014
- Marshet , T.T., and M. Vesper-Gräske, Africa, the African Union and the International Criminal Court: irreparable fissures?, Brussels, Torkel Opsahl Academic EPublisher, 2016
- Murithi, T., Between Political Justice and Judicial Politics: Charting a Way Forward for the African Union and the International Criminal Court, In: Werle, G. (et al.), (eds.), Africa and the International Criminal Court, The Hague, Asser Press, 2014, p. 179-193.
- Okafor, O. C., and U. Ngwaba, "The International Criminal Court as a Transitional Justice Mechanism in Africa: Some Critical Reflections, In: International Journal of Transitional Justice, Vol. 9, No. 1, 2015, p. 90-108.
- Tejan-Cole, A., "Africa and the International Criminal Court: Legitimacy and Credibility Challenges", In: Jalloh, C. C. and O. Elias (eds.), Shielding Humanity : Essays in International Law in Honour of Judge Abdul G. Koroma, Leiden, Brill Nijhoff , 2015
- Tladi, D., "The Duty on South Africa to Arrest and Surrender President Al-Bashir under South African and International Law. A Perspective from International Law", Journal of International Criminal Justice, Vol. 13, No. 5, pp. 1027-1047.
- Triffterer, O., and K. Ambos (eds.), Rome Statute of the International Criminal Court : a Commentary, München, C.H. Beck, 2016.
- Werle, G. (et al.), (eds.), Africa and the International Criminal Court, The Hague, Asser Press, 2014.
ICC - In general
- What does the International Criminal Court do?, BBC News
- Rome Statute, ICC
- Pdf of the Rome Statute, ICC
Withdrawal of African Countries from ICC
- Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi, ICC
- Press Conference by the President of the Assembly on withdrawal from the Rome Statute, today at 15:00 (GMT) in Dakar, ICC
- President of the Assembly regrets withdrawal of any State Party from the Rome Statute and reaffirms the Court’s fight against impunity, ICC
- Five thoughts on South Africa, Burundi, and ICC withdrawals, Justicehub
- Is this the end for the International Criminal Court?, BBC News
- Is this the end of the International Criminal Court?, Washington Post
- Stay and fix the ICC, African Union hopeful urges peers, Reuters
- African Union members back Kenyan plan to leave ICC, The Guardian
Burundi's withdrawal from the ICC
- Burundi: ICC Withdrawal Major Loss to Victims. Latest Move Shows Government’s Disregard for Victims, Human Rights Watch
- Burundi’s ICC Withdrawal a Major Blow for Accountability, The Global Observatory
South Africa's withdrawal from the ICC
- South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?, EJIL Talk!
- South Africa Signals ICC Withdrawal, Human rights watch
- South Africa: Continent Wide Outcry at ICC Withdrawal. Victims’ Advocates Urge Reconsideration, Support for Court, Human rights watch
- South Africa: ICC Move Betrays Victims. Members Should Reaffirm Support for International Court, Human rights watch
- Mandela legacy on the line as South Africa moves to leave ICC, ciccglobaljustice.wordpress.com
- South Africa to quit international criminal court. Justice minister says court’s obligations are inconsistent with domestic laws giving sitting leaders diplomatic immunity, The Guardian
- South Africa’s Failure to Arrest President Bashir, The Hague Institute for Global Justice
- South Africa to quit international criminal court, The Guardian
- Why South Africa is wrong to leave the International Criminal Court, The Guardian
- What South Africa leaving the International Criminal Court would mean, BBC News
- South Africa: Decision to leave International Criminal Court a ‘deep betrayal of millions of victims worldwide’, Amnesty International
- Reaction: South Africa ICC withdrawal move, #GlobalJustice
- Et si le Brexit inspirait l'Afrique?, JeuneAfrique.com
- What the law says about South Africa's duties, eNews Channel Africa.
Gambia's withdrawal from ICC
- Gambia: Withdrawal from ICC a drastic blow to countless victims globally, Amnesty International
- The Gambia joins African queue to leave ICC, BBC News
- Gambia is latest African nation to quit international criminal court, The Guardian
- Gambia latest African country deciding to pull out of International Criminal Court, Washington Post
Other African states & withdrawal from ICC
- Sudan's Bashir defies arrest warrant with trip to Uganda, Reuters
- Uganda's Museveni dismisses the 'very useless' ICC, Mail & Guardian Africa
- Kenya's formal process to quit ICC yet to begin, Daily Nation
- Kenya moves closer to pulling out of ICC, Daily Nation
- Ayuo, D. O.,"The Implications of Kenya's withdrawal from the Rome Statute", 2013 (?), Academia