Is the International Criminal Court About to Turn Irrelevant?

Decisions by South Africa, Burundi, and the Gambia to leave the court raise questions about its future

Near simultaneous decisions by South Africa, Burundi, and the Gambia to withdraw from the International Criminal Court have sparked fears of an exodus of African countries from The Hague-based court that is widely perceived as biased against Africans. Such a scenario raises serious concerns about the court’s future as well as questions about the judicial recourse that would remain for victims of the world’s worst atrocities.

South Africa announced its intention to leave the International Criminal Court (ICC) on October 21. The move shocked many in the international community who have long viewed South Africa as a champion of human rights on the continent.

Shortly before South Africa’s decision was made public Burundian lawmakers overwhelmingly voted in favor of withdrawing from the court after ICC prosecutor, Fatou Bensouda, announced that she would open an investigation into the ongoing human rights abuses in Burundi.

Last week, the Gambia—whose president, Yahya Jammeh, has been described as “Africa’s worst dictator”—became the third African country to announce its intention to withdraw from the court. It cited the ICC’s “persecution and humiliation of people of color, especially Africans” as the reason for its decision.

The crumbling credibility of the ICC in Africa is widely acknowledged. Since its inception in 1998, nine of the court’s ten investigations have been in African countries and to date it has secured only four convictions, all of them against African leaders. This has angered many African countries  that claim that the ICC has an “Africa problem,” with some even going as far as to say that the ICC is inherently racist.  This concern is exacerbated by the fact that three UN Security Council members (including the United States) have not ratified the Rome Statute, exempting them from ICC scrutiny.

The African Union (AU) was fiercely critical of the ICC’s first prosecutor, Luis Moreno-Ocampo, an Argentinian, and lobbied intensely for the appointment of an African prosecutor in his stead. Bensouda became the ICC’s second prosecutor in 2011. She previously served as justice minister in Jammeh’s administration. Bensouda has not managed to dramatically improve the perception of the court among critical states, least of all in her own country.

Unlike with both Burundi and the Gambia, South Africa’s decision to leave the ICC was not associated with an attempt to avoid prosecution for egregious human right abuses. Instead, South Africa’s decision to withdraw came just one month before its Constitutional Court is due to hear an appeal of a lower court judgment that found that the government violated its obligations to the ICC by failing to arrest Sudanese President Omar Al Bashir when he attended a regional summit in Johannesburg last year. Bashir has been indicted by the ICC on charges of war crimes, crimes against humanity, and genocide.

In a written submission to the United Nations, South Africa justified its withdrawal from the ICC stating that its diplomatic conventions (read: immunity) for visiting heads of state were in conflict with its obligations to the ICC to arrest wanted war criminals.

This move is indicative of South African President Jacob Zuma’s desperation and the waning popularity of the ruling African National Congress (ANC). Zuma’s legacy is laden with scandal. The current political crisis in South Africa is centered around deeply entrenched corruption and cronyism at the highest levels of government. The Constitutional Court has already ruled against Zuma once this year. He cannot afford to suffer another domestic embarrassment at this level.

In August, the ANC suffered its worst loss at the polls since it came to power, a sign that the party’s liberation credentials and the remnants of Nelson Mandela’s legacy are no longer enough to mobilize its once loyal voter base. With the decision to leave the ICC, Zuma is clearly indicating that his party’s attention is focused on domestic affairs and that there is little consideration given to reassuring the international community of the legitimacy of his leadership.

It is true that there are valid criticisms of the ICC, but without it, there are limited alternatives. The African Union founded the African Court on Human and Peoples’ Rights in 1998, but to date the court faces more severe legitimacy concerns than the ICC—only thirty of the fifty-four AU member states are party to the protocol that established the court, and of those thirty only seven have recognized the competence of the court to receive cases referred by NGOs or individuals.

The African Court on Human and Peoples’ Rights also faces severe funding challenges—by 2011, the court’s budget was $6 million, in contrast to the ICC, which operates on a budget of $153 million. The African court will be hard pressed to secure further funding because it is perceived to be merely replicating the ICC’s work.

African states represent the most substantial bloc of countries under the ICC’s jurisdiction, placing them in a unique position to lobby for more focused attention on the prosecution of crimes in other non-African countries. South Africa had the potential to play an important role in strengthening the credibility of the ICC in Africa, a role that it has now divested itself of, with no public deliberation over the consequences. South Africa could also have initiated a consultative process with ICC member states to discuss concerns over how to resolve its obligations to the court as well as its commitment to immunity for visiting heads of state. Instead of working to improve the functioning of the ICC, South Africa has made it clear to other African countries that abandoning the court altogether is a viable alternative. 

Chloë McGrath is a visiting fellow in the Atlantic Council’s Africa Center.

Image: Recent decisions by South Africa, Burundi, and Gambia to leave the International Criminal Court have sparked fears of an exodus of African countries from The Hague-based court and raised concerns about the court’s future. (Reuters/Jerry Lampen)