International Criminal Court Hit by Planned Exit of 3 African States
When the treaty creating the International Criminal Court was opened for signatories in 1998, Egyptian-born legal scholar Mahmoud Cherif Bassiouni called it “a triumph for all peoples of the world.”
Fast-forward 18 years, and the lofty ideal of establishing a court that would end impunity for atrocities and deliver justice to victims is reeling from the announced departures of three African member states: Burundi, South Africa and Gambia. Never before has one of the court’s 124 member states quit. Now three have.
Concerns are growing that more African countries will leave.
The court, which this year moved into a new headquarters in The Hague, long has been accused by some African leaders of bias against their continent. At first glance, it’s easy to see why.
Since the Rome Statute treaty creating the court came into force in 2002, the ICC has convicted only four people of war crimes and crimes against humanity. Three were from Congo and one from Mali.
The court so far has indicted only suspects from Africa, ranging from notorious Ugandan warlord Joseph Kony to Sudanese President Omar al-Bashir and late Libyan dictator Moammar Gadhafi. It currently has 10 full-scale investigations underway, with nine in Africa and the other in the former Soviet republic of Georgia.
But Alex Whiting, a professor at Harvard Law School and former ICC prosecution coordinator, said the court shouldn’t be blamed for the Africa focus. In six cases, the African countries themselves asked the ICC to investigate, and two others were referred to the court by the U.N. Security Council.
“Could the ICC really have declined to move on these cases?” Whiting said.
Supporters of the court say more is at play, including fears in Burundi and Gambia that ICC prosecutors could target rulers there.
The court’s chief prosecutor, Fatou Bensouda, herself a Gambian, was defiant this week and insisted — as do other observers — that the court will weather the crisis.
“I don’t think we should feel we are defeated and that the court will close tomorrow,” Bensouda told a seminar in The Hague. “No, the court will have its challenges. We will counter those challenges. We will confront them and move forward.”
The African departures have highlighted broader criticisms of the court, which employs some 800 staff and has a proposed budget next year of just over 150 million euros ($164 million). Most notable is its failure to tackle crimes outside the continent, such as the litany of atrocities in Syria’s brutal civil war.
“It is understandable that countries that have voluntarily submitted themselves to the ICC wonder why there is no accountability in places like Syria, and why the Security Council has not acted to refer Syria to the ICC or construct a tribunal for Syria,” said Whiting. “That’s why I think that the criticism of the African countries should be aimed at the international community rather than the ICC.”
Syria’s civil war is largely out of reach of the ICC prosecutors because the country is not a member of the court. A resolution by the U.N. Security Council to refer the Syrian war to the ICC was vetoed in May 2014 by Russia and China.
Another longstanding criticism that feeds into African discontent is the fact that global powers such as the United States, Russia and China are not members.
Theo van Boven, an honorary professor of international law at Maastricht University who led the Dutch delegation at the Rome conference that created the ICC, said the absences hurt the court.
“It would be helpful indeed if major powers … would join and contribute to the representative character of a judicial institution that is standing for universal values of an imperative nature,” Van Boven wrote in an emailed response to questions by The Associated Press.
The court’s focus has begun shifting further afield. It is currently conducting 10 so-called preliminary examinations — probes to establish whether to open a full investigation — in countries including Afghanistan, Ukraine and Colombia, as well as the Palestinian territories and alleged crimes by British forces in Iraq.
While the court has had high-profile failures in Africa — the collapse of the case against Kenyan President Uhuru Kenyatta and the inability to have Sudan’s president arrested — it also has registered successes.
ICC judges have delivered convictions for using child soldiers in conflict and for horrifying sexual crimes that long have gone unpunished. They recently convicted an Islamic militant for destroying historic mausoleums in the Malian desert city of Timbuktu.
It is still possible that South Africa, a staunch supporter of the court under former President Nelson Mandela, will reverse its decision to leave the court, Prof. Michael Scharf, dean of the law school at Case Western Reserve University, said.
The decisions by South Africa, Burundi and Gambia to leave also might be a wake-up call for the court, he said, “inspiring a serious re-examination of ICC-African relations and ultimately leading to reforms in the ICC’s approach to Africa.”
The global human rights umbrella organization FIDH slammed the countries’ departures as damaging the lofty goals of the court.
“We believe that withdrawing from the ICC puts a premium on impunity,” the group said in a statement signed by 106 rights groups, including many from Africa. “Withdrawal poses a threat to one of the greatest advances in justice of the 21st century, at a time when genocide, crimes against humanity and war crimes are perpetrated regularly and rampantly worldwide.”