The Beginning of the End? South Africa, Burundi and the Gambia Announce Their Exit from the ICC – Nandini Bajaj

The three ongoing trials before the International Criminal Court (ICC) concern individuals from the Côte d’Ivoire, the Central African Republic, and the Democratic Republic of the Congo. The trials, which are due to begin, concern nationals of Uganda and Sudan. Of the ten situations under investigation, only one involves a non-African state. All four arrest warrants issued by the ICC address nationals of Sudan and Kenya. The three cases currently in the reparations stage of proceedings deal with nationals from Mali and the Democratic Republic of the Congo.

In light of this, it is likely of no surprise that South Africa announced on 21 October that it has decided to exit the ICC. This was following a similar decision by Burundi, and it was closely followed by an exit announcement from the Gambia. Kenya and Uganda have also suggested they may follow suit.

The official reason given by South Africa for its decision was that the obligations placed upon it by the Rome Statute are incompatible with South Africa’s own constitutional laws on diplomatic immunity, and thus impeded its ability to exercise effective diplomacy, namely, peace talks.

Burundi argued that the ICC was used as a political tool to remove those with power in Africa, and the Gambia claimed the ICC is a neo-colonial tool being used to persecute people of colour, specifically Africans.

Whilst these statements are arguably somewhat true, it is worth noting the political circumstances surrounding them.

In 2015, South Africa refused to comply with an arrest warrant issued by the ICC for Omar Al-Bashir, President of Sudan, when he visited the country. During his visit, a court order was issued within South Africa ordering Al-Bashir to stay in South Africa in order to allow time for it to be determined whether he ought to be arrested. Earlier this year South Africa’s Supreme Court of Appeal ruled that South Africa, having ratified the Rome Statute, had a duty to arrest Al-Bashir and its failure to do so was unlawful.

Burundi is currently under preliminary examination by the ICC for a number of acts, including enforced disappearances, killings and sexual violence. The examination was announced on 21 April 2016. Furthermore, on 17 December 2015, the United Nations Independent Investigation into Burundi was launched, looking into human rights abuses with Burundi. It appears to be highly unlikely that these two events, and the potential ramifications on the president, Pierre Nkurunziza, are not driving forces behind Burundi’s recent decision.

The current president of the Gambia, Yahya Jameh, has been in power since 1994 and has been regularly accused of violating human rights. The United Nations’ Special Rapporteurs were invited by the Gambia in 2014, and although they were prevented from completing their investigations, they found several instances of human rights abuse, including summary executions.

It is interesting to note here that not only is the current chief prosecutor of the ICC a Gambian national and former justice minister, but the Gambia has also been pushing the ICC to open investigations into the deaths of African migrants and refugees in the Mediterranean. Again, it is difficult to completely believe the Gambia’s official reason for exiting, given the context of significant human rights breaches in the Gambia and its desire to use the ICC whilst denouncing it.

The decision to withdraw has faced significant criticism in South Africa, namely from the political opposition and activists. The Democratic Alliance, one of the main opposition parties in South Africa, may challenge the decision to withdraw in the courts.

Professor Chris Lindsberg, Research Chair in African Diplomacy and Foreign Policy at the University of Johannesburg stated that the South African government “could not stomach the idea of yet another court decision, in this case, the highest court in the land, finding against them”, referring to the case concerning Al-Bashir. Richard Goldstone, a former justice of South Africa’s Constitutional Court, described the decision as “unfortunate on legal, moral and political grounds”. Mossaad Mohamed Ali of the African Centre for Justice and Peace Studies argued that since South Africa was a founding member of the ICC, its decision now sends the message to victims that “Africa’s leaders do not support their quest for justice”.

The question, of course, is where will the ICC go from here? Some, like Indiana University associate professor David L Bosco, have said that there is a “real chance” that there will even more withdrawals of African States from the ICC. Indeed, the African Union issued a decision to not cooperate with the ICC arrest warrant to Al-Bashir and commended South Africa for complying with the decision.

However, the current President of the Assembly of State Parties of the ICC and justice minister of Senegal, Sadiki Kaba, has invited South Africa and Burundi to “reconsider their positions” and work with the African and international community in the fight against impunity. Furthermore, Botswana, Nigeria, Tunisia and the Côte d’Ivoire also stand with Senegal in remaining committed to the ICC.

While the decisions to leave the ICC are regrettable and will likely not improve the international community’s aim to end impunity for international crimes, there are valid criticisms of the ICC. Although many of the cases have been self-referrals, the ICC has focused incredibly heavily on African conflicts. This focus may have been because of the difficulty in conducting investigations in areas like Afghanistan, Palestine and Colombia, although the ICC has recently opened preliminary examinations into all three. The ICC is also significantly hamstrung by the fact that three major world powers, China, Russia and the United States of America, are not parties to the Rome Statute. Moreover, as all three have veto power within the UN Security Council, efforts to refer cases such as international crimes in Syria have been vetoed in the Security Council.

Ultimately, it remains to be seen how this process of exiting the ICC will take place, or if it will at all. These decisions by South Africa, Burundi and the Gambia could either mark the beginning of the collapse of the ICC, or brand them as rogue States unwilling to engage in international efforts to combat impunity and international crimes.

Nandini Bajaj is an Assistant Editor of the ILA Reporter.