In a period of about three weeks, a long time after African states appeared to have moved on from the threats of a mass African exit from the International Criminal Court (ICC), three African States have actually taken steps in that direction.
The Rome Statute that creates the ICC makes provision for withdrawal by a simple written notification of withdrawal to the Secretary General of the UN. Burundi’s embattled President, Jean Pierre Nkurunziza on October 19, signed the instrument withdrawing from the ICC; all that is left is the formal written notification to the UN, which is the easy part that appears to be only a matter of time. On the same day, the UN received a formal notification from South Africa, kicking off a withdrawal from the ICC that would be concluded in October, 2017. Today, it has been reported that the Gambia plans to withdraw from the ICC with immediate effect.
These withdrawals have several potential effects both on the regional as well as the international scene. We shall look into the Burundi and South African withdrawals since these were actually underway at the time of publishing:
i) This having been the first official attempt at a withdrawal on the continent, Burundi’s exit plan has encouraged other African States (or politicians) to make a case for their countries’ own withdrawal from what they have repeatedly argues is a racist and neo-colonial institution used by powerful states to witch-hunt African leaders. The subsequent withdrawal by South Africa is a clear example of this effect. Burundi’s exit here is that girlfriend that convinces you that you actually have a nice singing voice and should go to the African Idol auditions at the Sheraton. That friend that tells you, ‘Just one more shot of whiskey will not get you any drunker than you already are’, just when you needed it.
b) South Africa
i) South Africa, is known for being one of the most progressive and liberal states in Africa; a generally peaceful country with relatively strong institutions, including the Judiciary, Civil Society, Legislature etc., one of the first to join and domesticate the Rome Statute of the ICC. Its exit, therefore, is seen quite differently from Burundi’s, the latter having come out of a violent period in which many top officials would likely prefer to be immune from any international crimes prosecutions that would ensue. South Africa’s exit has thus emboldened several other African states that may have hesitated to withdraw from the ICC for fear appearing to be a fickle, undemocratic and backward. South Africa is the perfect leader of a small secondary school strike… many others are likely to follow it (the cool kid from outside countries with an accent to show for it) than would follow Burundi which appears to be the opportunistic school student that starts a strike in order to skip classes and attend a popular village dance that weekend.
c) General potential effects from these withdrawals
ii) These exits have eroded some of the intended effects of the ICC’s actions against suspected criminals on the African continent. President Al-Bashir of Sudan, for instance, had formerly been increasingly isolated on the regional and international scene owing to an ICC arrest warrant for crimes of genocide, war crimes and crimes against humanity. However, since this act of withdrawal, Al-Bashir has come out to endorse Burundi’s withdrawal and urged the mass withdrawal of African states from the ICC. President Museveni of Uganda has since explained his growing friendship with Al- Bashir of Sudan as a meeting of minds … specifically referencing their similar views towards the ICC.
This effect is similar to what happens when the creepy kid farts and everyone thinks its gross but then the super cool kid (with an accent, of course) also farts and is proud to own up to his/actions, and then all of a sudden, it’s cool to fart, and the creepy kid becomes a cool, rugged, Johnny Depp of the Pirates of the Caribbean- type celebrity that can encourages other to fart when they like.
iii) This withdrawal act has reinforced the rhetoric of African states of an anti-African Court. Burundi’s parliament’s unanimous vote for a BUR-EXIT as well as South Africa’s swift notification of an exit that was not followed by large protests or pushback, has confirmed to many what they have silently been led to believe, that there cannot be anything good coming out of the ICC for African states and since an entire country’s parliament could see that, it can no longer be denied. Yes, think, ‘The Emperor’s New Clothes’; everyone sees them, so you are a fool if you don’t. There is a new world opinion, people of Africa… get with the program!
iv) The work of the ICC can only get more difficult from here. Aside from the fact that this exit is a sign of continued dissatisfaction with the Court from the general masses, it is also an indicator of the difficulties and possible hostility that the Court will face with investigations and prosecutions that may come out of Burundi following the Prosecutor’s preliminary investigations surrounding the recent violence that has gripped the nation. A situation similar to the Kenya prosecution may inevitably be the result. Imagine you brush off this lady’s advances in a club somewhere, only to get to your new job and she is the boss lady. Yes, of course, fun times ahead for everyone!
All the above does not, of course, take into account all the nuance that is involved in the relationship between the ICC and Africa. Most of the African states before the court have referred themselves to it; the most recent case being Gabon. In addition, Botswana has recently intervened seeking to convince South Africa to reconsider its withdrawal from the court. Many other African states have been silent in response to the calls for mass withdrawal.
There is an opportunity here; yes, we at BFL believe strongly in silver linings; an opportunity for the ICC to get the message clearly that there is a serious need to intervene, debate, discuss, analyse and consider taking African states’ concerns about the Court seriously and take steps to address those concerns by all possible avenues. This could prevent the predicted domino-effect that these withdrawals will have on the rest of the 31 African member states of the ICC. This could, wait for it … ‘Make the ICC great again!’
This may be a chance for African states to look inward and reaffirm their commitment to international criminal justice by either providing domestic options for prosecution of international crimes or by ratifying the Protocol establishing the international criminal chamber of the African Court of Human and People’s Rights. This would offer an alternative to the ICC for states that have not ratified the Rome Statute and it would also leave those countries that withdraw from the ICC with a legally viable option for prosecuting international crimes. This is especially important since the ICC’s self-proclaimed aim has always been to encourage states to develop the domestic capacity to prosecute international crimes. All in all, however, these moves have dealt a blow to the world’s first permanent penal international criminal court and the long lasting effects can only be speculated upon.
We shall continue to update you on the developments in this area as they arise.