The International Criminal Court could soon crumble in Africa
South Africa caused an international stir Friday when it announced its plan to withdraw from the International Criminal Court after filing official documents with the U.N. The country claimed its association with the court was at odds with its efforts at building sustainable peace in the region. The announcement immediately set off fears of an African exodus from the ICC, as it followed a similar Burundi announcement by Burundi in early October. Then on Wednesday, Gambia fueled those fears, becoming the third African country this month to announce its intentions to pull out of the ICC.
South Africa has a long and difficult history with human rights, and many fear that this move could be an enormous setback for the country. Activists and legal experts have greeted the decision with horror, saying the move could send the country back to the dark days of apartheid, leaving citizens without “any mechanism for accountability and justice for war crimes or genocide.”
— BBC Africa (@BBCAfrica) October 21, 2016
On Friday, Foreign Minister Maite Nkoana-Mashabane officially notified the United Nations of the intended withdrawal from the ICC. The process will take about a year.
South Africa’s main opposition party, the Democratic Alliance, has called the decision unconstitutional and appealed to the Constitutional Court for a hearing on the legality of the move.
Legal experts worry the move will leave South Africa without the necessary tools to prevent the most heinous crimes. “It makes no sense. Peace and justice are not mutually exclusive,” Kaajal Ramjathan-Keogh, executive director of Southern Africa Litigation Centre, told VICE News. “South Africa comes from a very dark place in our history and if [the ICC] had existed during apartheid, that would have been a very useful tool for us.”
“The withdrawal by South Africa is a major blow to human rights in South Africa and in Africa in general.”
He added: “There is no guarantee, with us withdrawing from [the ICC], that there will be any mechanism for accountability and justice for war crimes or genocide.”
The ICC wants South Africa to reconsider its decision to withdraw from the court, urging it to talk with the other countries involved before making a final decision.
At a press conference on Monday in Senegal, Sidiki Kaba, president of the Assembly of States Parties to the Rome Statute of the ICC, said that he would seek to bring all sides together at a planned meeting in the Hague next month.
What is the ICC?
Its function is to prosecute criminals when national courts are unwilling or unable to do so, though investigations can also be referred to it by individual countries and the United Nations Security Council. It prosecutes only the most serious offenses, including genocide, crimes against humanity, war crimes and crimes of aggression.
Since it came into force in 2002, the ICC prosecutor has officially opened investigations for 10 situations and indicted 39 individuals. In nine of the 10 investigations, the country in question was in Africa.
Reasons for departure
Though the official line says the ICC is at odds with the country’s attempts to build a sustainable peace in Africa, there is another factor at play.
Sudanese President Omar al-Bashir was indicted by the ICC in 2009 and 2010 for war crimes and genocide in the Darfur region. When he arrived in South Africa in June 2015, the SALC brought an application for his arrest to the High Court and a warrant was issued. However, the government facilitated his departure before he could be detained, according to Ramjathan-Keogh.
Since then the South African government has challenged the application before the Supreme Court, which it lost, and now is challenging it further in the Constitutional Court.
Ahead of a planned hearing on Nov. 22, it appears the government already knows the outcome. “It seems that they are aware that they will lose the Constitutional Court appeal and the position will be clear that they failed in their obligations,” Ramjathan-Keogh said.
“Major blow to human rights”
By removing itself from the ICC, South Africa could soon become home to many unsavory characters, human rights groups worry.
“South Africa may become a haven for serious criminals and [this decision] poses a long-term threat to the ability of the country to deal with serious crimes,” said Arnold Tsunga, the Africa director of International Commission of Jurists, a group that has worked extensively on international justice issues – including the ICC – in the recent past.
“The withdrawal by South Africa is a major blow to human rights in South Africa and in Africa in general,” Tsunga told VICE News.
Is the ICC racist?
Several African countries have suggested that the ICC is inherently biased against African nations. The fact that nine out of the 10 investigations the court has taken up have focused on African countries would appear to give that claim some credence.
However, six of the nine cases the ICC pursued began at the behest of the governments themselves, the court’s lead prosecutor, Fatou Bensouda, noted.
Will other countries follow suit?
One already has — The Gambia’s announcement that it intended to withdraw from the ICC came less than a week after South Africa’s. On Wednesday, Gambian Information Minister Sheriff Bojang called the ICC “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”
According to R-Keogh, other countries likely to leave in the near term include Namibia, Uganda, and Kenya, which is unsurprising, given that the country’s president, Uhuru Kenyatta, said in 2013 that the court was “race hunting” on behalf of its benefactors and being used as a tool to oppress Africans.
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