South Africa's Exit from the International Criminal Court Threatens World Diplomacy
By Andrew Teodorescu
On October 21 2016, South Africa announced its withdrawal from the International Criminal Court (ICC), commencing its exiting processes that same day. The Court, which only tries cases related to genocide, crimes against humanity, crimes of aggression, and war crimes is dedicated to holding those who commit such serious offenses liable for their actions. The nation decided to leave the ICC because its leaders felt that the ICC disproportionately targets African leaders.
As with all supranational institutions, a state’s participation in the court is voluntary, and only 124 of the 193 member states of the United Nations (UN) belong to the Court. South Africa will be the first state to withdraw from the Court since 2002, when the Rome Statute—the treaty that established the ICC—entered into force. Mirroring the generally-differing opinions regarding supranational authority, responses to South Africa’s exit have been mixed. Many supporters of the ICC express concerns that it could lead to an exodus of African nations from the Court that are dissatisfied with the role it plays in their own governments. Within just one week of South Africa’s announcement of its withdrawal, Gambia and Burundi, two African nations have also announced their intentions to leave the Court. An African exodus from the Court not only seems likely, but inevitable. While South Africa’s concerns about the ICC’s bias against African leaders appear legitimate, its government’s scrap-and-go attitude significantly threatens the livelihood of the ICC and its generally-good intentions.
The governments of South Africa, Gambia and Burundi are entirely justified in their allegations that the ICC unevenly attempts to prosecute African leaders. In fact, all but one of the investigations led by the ICC involve African politicians and warlords. Whether or not the ICC is attempting to prosecute such individuals unfairly or unequally is a much more complicated question to answer. The Office of the Prosecutor (OTP), the office that decides which cases to investigate and to argue in the ICC, has been criticized for not taking more cases in other continents. Such criticisms seem valid at surface level, but fall apart when given a closer look. The Court has the will to prosecute those who have committed the crimes that it has jurisdiction over, regardless of their location. However, the Court’s jurisdiction as a supranational authority is limited in many respects. If the individual being investigated lives in a country that has not declared its acceptance of jurisdiction by the Court, or if there already exists in that country a credible national investigation into the matter, or if the alleged crime occurred before July 2002, the Court cannot investigate the case, just to name three of many conditions in which investigate powers are restricted. These restrictions alone significantly limit the cases that can be investigated. Furthermore, many African states support, and even request, investigations of African leaders.
While South Africa’s allegation of the Court’s anti-African bias seems legitimate on the surface, the allegation lacks substance when taking the limitations of the Court’s jurisdiction into account. Instead, South Africa likely left the Court for the much more political reason that its government did not want to “[face] the embarrassing prospect of having to arrest the president of Sudan, Mr. Omar Hassan al-Bashir, last year when he came to visit.” Under the mandate of the Rome Statute, the South African government was compelled to arrest Mr. Bashir, but they cited a conflict between state and supranational interest as their reason to not. More specifically, they issued a statement saying that the “implementation of the Rome Statute is in conflict and inconsistent” with South Africa’s “[active involvement] in promoting peace, stability and dialogue in [unstable African countries].” The government, however, “did not say” how arresting a man wanted for committing crimes against humanity would “interfere in [that] ability.”
While South Africa will still operate under the Rome Statue for one more year as it withdraws from the Court, their government insists that it “[will remain] committed to the fight against impunity,” even after their withdrawal from the Court. The problem, now, is that there is no supranational authority holding South Africa accountable when it does not own up to its word. South Africa’s noncompliance not only shows that the state is unwilling to work internally within the ICC to correct the bias that it perceives, but that it would rather just leave the institution. The move is more than lazy; its implications for the political priorities of South Africa are provocative. If the government did not want to risk embarrassment to arrest Mr. Bashir, a man who has committed mass atrocities in his own country, while under the mandate of the Rome Statute, the government will surely take an even less active stance towards fighting impunity in future cases.
South Africa’s exit from the Court not only has strong implications for South Africa’s future of indifference to international justice, but it also foreshadows a mass exit of African countries from the Court. Gambia and Burundi have already followed in South Africa’s footsteps, and Uganda, Kenya, and Nigeria have voiced interest in pulling out, as well. These nations fail to acknowledge that the ICC is a victory for human diplomacy, and leaving its mandate shows a disinterest in championing international diplomacy.
If these nations feel that the OTP exhibits anti-African bias, then they should work together to create groups internal to the ICC that voice their concerns. Leaving the ICC for speculative reasons is jumping the gun, which should not happen in an institution as important as the Court. Supranational judicial authority is inherently weak, and it becomes even weaker as the number of its participants decreases. Nevertheless, when applied properly, such authority is necessary for the greater good of all nations. The justice that the ICC serves should be protected at all costs, so serious attempts to address concerns about the fairness of the ICC should have been made by South Africa before considering withdrawal.