South Africa announced on Thursday it is withdrawing from the International Criminal Court (ICC). It came days after Burundi’s president signed a bill to also leave the court. Years of threats to leave and attempts to organize the African Union behind a mass departure finally led two countries to take action.
All they need to do is send in formal letters to the court and they are out of its jurisdiction – in a year.
It might seem like Africa and the ICC are starting to go through a break up. The truth is that the relationship is complicated. Three weeks ago Gabon referred itself to the court and invited investigators to look into recent post-election violence. Wednesday, former Congolese Vice President Jean-Pierre Bemba the court convicted of tampering with witnesses. He is already serving an 18-year sentence for war crimes and crimes against humanity.
“It seems that some states will criticize the court when it suits them, but utilize its investigations when it is in need of assistance to hurt their enemies,” wrote Stephen Lamony, head of advocacy and policy for the Coalition for the International Criminal Court, on the Justice in Conflict blog.
Burundi’s President Pierre Nkurunziza has a major motivation to leave the ICC. His campaign for a third term led to protests and a failed coup that emboldened crackdowns by government security forces. Some say that Nkurunziza’s actions were criminal. The ICC opened a preliminary investigation into the violence, setting the stage for a potential indictment against the president and/or his supporters.
Gabon is in the opposite situation. President Ali Bongo Ondimba narrowly won re-election in late August. Deadly protests erupted following the announcement that he defeated challenger Jean Ping. Both men accused each other of rigging the election and fanning conflict. Bongo brought in the independent ICC and Amnesty International to investigate with the hopes that his opponent could face conviction.
The entire continent is divided.
The court indicted Sudanese President Omar al-Bashir more than six years ago for military attacks on people in Darfur. He is not a fan of the court. Nor was South Africa after it came under heavy criticism for allowing Bashir to travel to the country last year and leave without an arrest. South African civil society brought the government to court for doing nothing and won the lower court cases. The case was appealed to the highest court.
A small group of countries want the African Union to consider leaving the ICC as a whole. Kenya is one of the biggest proponents. The court indicted Kenya’s president and vice president for their roles in the 2007 – 2008 post-election violence. Charges against them and the four other Kenyan leaders were either withdrawn or dropped.
At this year’s African Union Summit, ICC opponents tried to get a discussion to withdraw en masse on the agenda. That didn’t happen. Countries committed to the ICC successfully lobbied against the proposal.
South Africa’s decision might be a game changer. The country is a long supporter of the ICC and it is not really in trouble with the court. Unlike Burundi, it is not a clear-cut case of self-interest.
“South Africa’s departure is far more troubling,” wrote Kate Cronin-Furman and Stephanie Schwartz, in the Washington Post’s Monkey Cage blog. It should be an easy case for ICC cooperation — a country that feels little threat of being investigated by the court and has a tradition of strong engagement with the international community and leadership on peace and justice issues. Its decision to withdraw sets a far more palatable precedent for other ICC skeptics to follow and makes a mass exodus much more likely.
There are many legitimate complaints about the ICC, including the fact that the world’s most powerful countries tend to escape the court’s eye. All of the 32 indictments by the court, starting with Ugandan warlord Joseph Kony in 2005, involve Africans. That soon may change with recent investigations in Georgia, Honduras and Ukraine.
More African countries may follow South Africa and Burundi’s lead. Or they might not. Although countries are officially out of the ICC after formally submitting a letter of withdrawal from the court, there’s a catch. The court can investigate all crimes perpetrated a year after a country’s withdrawal. Neither has officially left, so the clock is still running on what counts.
“If the goal was to avoid ICC scrutiny altogether, the Burundian government’s anti-ICC tantrum could seriously backfire. What may have been left in the potential purgatory that is an ICC preliminary examination is now likely to be transformed into an official investigation by the Court,” said Mark Kersten, an international criminal justice researcher, on his blog.