Last month the International Criminal Court in The Hague requested South Africa and Burundi to reconsider their decisions to withdraw from the institution. This followed an announcement by South Africa that it had notified United Nations Secretary-General of its intent to withdraw as a party to the Rome Statute that established the court in 2002.
The Rome Statute “is in conflict and inconsistent with” South Africa’s law on diplomatic immunity, said South African Justice Minister Michael Masutha, while announcing Pretoria’s decision. The move by South Africa came just three days after Burundi announced its decision to withdraw from the court following plans by the ICC to investigate political violence that followed the president’s decision last year to pursue a third term.
The South African announcement follows a controversy last year when Sudanese President Omar al-Bashir visited Johannesburg for the African Union summit. Despite an ICC arrest warrant against the Sudanese President over alleged war crimes, South Africa failed to arrest him citing diplomatic immunity. This move invoked considerable condemnation from international human rights organizations and legal groups.
While the decision by Burundi could be dismissed as an attempt by the president to avoid international scrutiny, the announcement by South Africa is much more significant. The country was among the principal supporters for the establishment of the ICC. There is rising concern that decision by South Africa and Burundi could pave the way for other African states to leave the ICC; already Namibia, Uganda and Kenya have raised the possibility.
So is there growing disillusionment with the ICC in Africa? When the International Criminal Court (ICC) was established in 2002, it was, at least on paper, seen as a noble venture. The Rome Statute of 1998, the multilateral treaty that resulted in the establishment of the ICC as an intergovernmental organization and an international tribunal, allowed it to investigate and prosecute cases of genocide, crimes against humanity and war crimes crime, especially when states were unable or unwilling to do so.
However, over the years, the court has struggled with a lack of cooperation from the major powers, including the United States and Russia, which has not ratified the Rome Statute and China which is not even a member. It is therefore highly hypocritical for the United States to judge African nations while maintaining that its own actions cannot be judged.
The court is also under the shadow of accusations and perceptions that it is biased against Africa in its investigations and prosecutions. Of the ten situations and 23 cases that the court is officially investigating, nine situations are in Africa and, not surprisingly, every one of the 39 individuals indicted by the court is African. Could this be construed as sign of a prejudiced court?
Not so, claims Fatou Bensouda of Gambia, who has been Chief Prosecutor of the court since December 2011. "I do not think that the voices of a few leaders, or of a few people from Africa, should be used to disregard the support that we still have in Africa… I think it is correct to say that most of our cases or all of our cases at the moment are in Africa. But that is not the whole picture, we are undertaking preliminary probes in other places," she said in a recent media interview. Moreover, six of the nine African cases handled by the court were brought by African governments and that two were referred by the United Nations Security Council. Only the Kenyan cases were initiated by the court’s prosecutors.
Despite the rehashed rebuttals of discrimination, the perception among many Africans that the ICC is a neo-colonial institution pursuing a Western agenda aimed at undermining and punishing African leaders from small, weak African states that do not toe the line, while ignoring crimes committed by richer and more powerful states is prevalent. Some of the most horrific mass atrocities in recent years have taken place outside of Africa, and the ICC has not opened even preliminary investigations into any of those incidents.
There is also the criticism about the judicial efficiency of the ICC. In its 14 years of operation, the court has completed only 17 proceedings, with 22 still ongoing. Of the 17 that were completed, six have had charges against them dismissed, two have had charges withdrawn, one case was declared inadmissible, four have died before trial, one has been acquitted and only three have been convicted. It delivered its first judgment in 2012, a full decade after its formation and two more in the years that followed. Three convictions in over 13 years and more than a billion in expenses cannot by any stretch of imagination be labeled as judicial efficiency. Justice delayed as they say is justice denied.
Perhaps what is needed is an African court for Africa capable of acting impartially as a tribunal for crimes committed on the continent. The African Court on Human and People's Rights, which was established under the auspices of the African Union in 2006, is a step in the right direction. It needs to be reinvigorated and supported so as to enable it to undertake investigations and prosecutions efficiently and independently.
The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, as well as any other relevant human rights instrument ratified by the States concerned.