Africa and 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African states have withdrawn or are thinking of withdrawing from the Rome Statute for several reasons.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.