African nations and the International Criminal Court: the real motives behind withdrawal

Jean-Baptiste Jeangène Vilmer

The recent withdrawals of South Africa, Burundi and Gambia from the ICC have sparked consternation in the field of international law.

On 20 October 2016, South Africa became the first nation to withdraw from the International Criminal Court (ICC). Burundi followed on 27 October; Gambia on 10 November. Others could follow suit. This is unprecedented in the history of international criminal justice. Russia’s announcement of its withdrawal on 16 November, on the other hand, following the publication of an ICC’s preliminary report into the 2014 annexation of Crimea, is not the real news story. Having signed but not ratified the statute, it was never a real member of the court. How then can this ‘Afrexit’ be explained? Why are African countries in particular leaving the ICC?

Neo-colonialism as a pretext

The official explanation offered by the African governments in question is that they are responding to a system of double standards, neo-colonialism and ‘white justice’. Indeed, until as recently as January 2016, all of the investigations before the ICC concerned African states. While the ICC’s Afro-centrism is a reality that should not be denied, the situation is more nuanced than many would like to accept:

(1) Contrary to African claims, the court has already shown an interest in cases elsewhere: the Office of the Prosecutor is conducting preliminary examinations in Afghanistan, Colombia, Palestine, Ukraine, on the British military intervention in Iraq, on registered vessels of Greece and Cambodia, and it has opened an investigation regarding a situation in Georgia.

(2) A number of objective factors contribute to the ICC’s Afro-centrism, including the great number of crimes falling within its competence on the African continent; the large number of African parties to the ICC statute; and the principle of complementarity, whereby the ICC can intervene only when a state is unable or unwilling to genuinely investigate and prosecute the perpetrators. This latter point is a key feature, as many African states simply do not have solid judicial systems and therefore lack the capacity to act.

(3) It should also be acknowledged that it was partially the African states themselves who ‘Africanized’ the court by trying to instrumentalize it. In many ICC cases, the African governments concerned brought the cases to the court in order to counter their respective domestic rebel groups. Not only have African state parties only referred African situations to the ICC prosecutor, although they are free to draw his/her attention to any other continent, but they have also only even referred situations in their own country (Uganda, DRC, Côte d’Ivoire, Mali, the Central African Republic twice, the Comoros and Gabon). That the court only targeted Africans suited African states very well until attention turned to the sitting heads of state (Bashir in 2009, Gaddafi in 2011, Kenyatta in 2012). This confirmed that the real problem, the red line, is not that the ICC targets Africans, but that they have begun to target Africans in power. Hence the Malabo Protocol, which attempts to establish an African Criminal Court consecrating the immunity of the entire ruling class (and which is therefore not acceptable).

So what are the real causes of this recent flurry of withdrawals?

A recent Al Jazeera English discussion on the question of perceived ICC Afro-centrism.

The real motives

The current backlash has less to do with neo-colonialism than with the selfish interests of a handful of leaders. Each of the incumbent heads of state has particular reasons for leaving the ICC. In other words, what is needed, and what my article offers, is a political — not racial — reading of the African countries’ withdrawal.

South Africa

That South Africa became the first state to take the step to withdraw surprised many observers because it was one of the first supporters of the ICC alongside Botswana, Ghana, Lesotho and Senegal. In May 2009, President Jacob Zuma publicly recognized his obligation to arrest Sudanese president Omar al-Bashir should the latter attend his inauguration, dissuading Bashir from coming. However, in June 2015, Zuma welcomed Bashir for the African Union (AU)’s 25th summit, attracting sharp international criticism. A political crisis ensued in which the opposition themselves attempted to impeach Zuma for helping a ‘mass murderer’ to escape justice. In his defence Zuma invoked the immunity of serving heads of state, contradicting his own position before his inauguration ceremony in 2009. To resolve this contradiction, Zuma finally threatened to withdraw South Africa from the ICC. His party, the African National Congress (ANC), confirmed this intention to withdraw as early as October 2015.

South Africa’s about-turn can be explained by reference to both a clash of norms (commitment to the ICC vs state officials’ immunity from international prosecution) and a clash of interests (a progressive internationalist foreign policy vs acceptance on the continent). South Africa also seeks to move away from the European camp and closer to its fellow BRICS members, most of which are critical of the ICC.

But why 20 October 2016? The answer here can be found in one of the classic drivers of state behaviour: status-seeking. Two days earlier, Burundian President Pierre Nkurunziza signed a ‘law concerning the withdrawal’ of Burundi from the Rome Statute (the founding treaty of the ICC), after both the Senate and the Assembly voted in favour of leaving the court. All Burundi had to do to formalize its withdrawal was to send a written notification to the UN Secretary General and it would have become the first nation to withdraw from the ICC. South Africa, a respectable regional leader with a global reach, could not let Burundi, a small pariah state, be the first to make such a historic move. Therefore, it submitted its ‘instrument of withdrawal’ to the UNSG before Burundi, incidentally skipping the parliamentary step. For this reason, the opposition and civil society are already challenging the legal validity of the government’s decision, on the grounds that an executive act of that sort is unconstitutional unless parliament first authorizes it.

Burundi

President Nkurunziza’s motivations are more straightforward: he simply wanted to escape the preliminary examination started in April 2016 into allegations of a number of crimes committed in Burundi since early 2015. However, it is not certain that it will allow him to actually escape the ICC, as withdrawal from the statute, which takes effect one year after the state party notifies the UNSG (article 127), is not suspensive. In other words, it does not remove the obligations to which the state submitted with respect to procedures which opened before the date the withdrawal comes into force. That is why, if the prosecutor believes she has sufficient legal grounds to do so, she should open a full investigation as soon as possible, and in any case before 27 October 2017.

Gambia

In some ways, Gambia’s decision is probably the least surprising. President Yahya Jammeh, who has been in power for 22 years, is known for his fantasies (he claims to be able to cure AIDS) and his unpredictability. As recently as June 2016, he was still defending ICC Prosecutor Fatou Bensouda, his former Minister of Justice: ‘Her job is difficult and, contrary to what I hear, the ICC does not specifically target Africa … Let those who want to leave the ICC leave, but if African countries were less weak and more united, we could weigh in the Court’. Four months later he said exactly the opposite, through his Information Minister Sheriff Bojang, who on 24 October accused the ICC of ‘persecuting Africans’ and announced the intention to withdraw.

There is a discernible rationale behind this turnaround. In view of his calamitous record of human rights violations, Jammeh knew that he would sooner or later interest the ICC, while the escape at the end of September 2016 of his former minister of the interior, who has asked for political asylum in Sweden, is an additional reason to worry since he could reveal many secrets. By withdrawing from the Rome Statute, he attempted to protect himself from this sword of Damocles, taking advantage of the movement created by Burundi and South Africa. Incidentally, it is also a provocation to neighbouring Senegal, the African champion of the ICC (first signatory in 1998), whose minister of justice currently chairs the Assembly of States Parties.

A limited domino effect

Apart from these few cases — which, it must be repeated, have nothing to do with the so-called neo-colonialism of the court, but only with the selfish interests of a handful of heads of state — the risk of a domino effect is low, as withdrawing from the ICC is costly, and not only in terms of image, as it potentially involves retaliatory measures, such as cutbacks in EU or US development aid. At the recent Assembly of States Parties, even critical states like Kenya and Uganda, which have been behind the AU’s backlash against the court for years, were either silent or supportive of the court.

The current haemorrhage does not threaten the court, but confirms it has a serious image problem. It is already suffering from a credibility problem for several reasons: the scarcity of prosecutions (in almost 15 years of existence, only four individuals have been found guilty); its limited material capacity (a budget of €139.5 million for 2016); the perceived risk of political manipulation; a questionable deterrent effect; and, most of all, unrealistic expectations of it, for example that it not only punishes criminals but also pacifies the world, which naturally condemns it always to disappoint. What it does have is social legitimacy, the fact that it has the support of a majority of states (124 states parties), and that is precisely what is weakened with the withdrawal of some African countries.

The court must therefore recognize this problem and try to remedy it as soon as possible. In my article, I suggest that this means, first, responding to the two main objections formulated against the ICC: the ‘Afro-centrist’ objection, and the ‘peace vs justice’ objection. Second, the court must develop a positive discourse, recalling the important role that African states played in its creation and development. Discursive elements are essential in order to render the debate more rational and accurate, but are certainly insufficient to solve the diplomatic crisis. For this reason, the article also formulates concrete recommendations for practical action to ease relations between the ICC and the AU, such as investigating more outside Africa, reinforcing African national jurisdictions, creating intermediary institutional structures, promoting regional-level action and relying more on ICC-friendly African states and African civil society.

The priority remains to show that the Court is able to tackle non-African cases, including against powerful states. From this point of view, it is probably not a coincidence that, at the very moment when it was being attacked on its African tropism, the office of the prosecutor declared that it has a ‘reasonable basis to believe’ that American soldiers committed war crimes in Afghanistan. An ICC investigation against American soldiers remains highly unlikely at this stage — it would have to pass the test of complementarity to start with — and could be counterproductive. Such a diversification could indeed be fatal to the court: however justified, an Afghan affair could encourage American objections (especially from an ‘America First’ Trump administration) in addition to those of the African countries, possibly clearing the way for further withdrawals. Whatever its future, this policy shift reveals the anxiety of the ICC. The court knows that its room for manoeuvre is small, and that the next few months will be crucial.


Jean-Baptiste Jeangène Vilmer is the director of the Institute for Strategic Research (IRSEM, Paris) and Adjunct Professor at the Paris School of International Affairs (Sciences Po).

He wrote recently on the subject of Africa and the ICC for International Affairs, in an article titled ‘The African Union and the International Criminal Court: counteracting the crisis’.

You can access his original article by clicking here.