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South Africa’s ICC Withdrawal: Why? And What Now?

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South African President Jacob Zuma at the Sports for Peace Gala 2010 in Johannesburg-Wikimedia Commons

Stunning many in the international community, South Africa announced on Friday that it had notified the UN Secretary General that it was withdrawing from the International Criminal Court. South Africa’s announcement followed a similar statementby Burundi the previous week that it had started the process of leaving the Court. No country has ever previously withdrawn from the ICC, which presently has 124 States Parties.

Some African countries have threatened to pull out from the ICC in the past, claiming that the Court has an “anti-African bias,” but the momentum for exodus had seemed to slow in recent months, and therefore the moves by Burundi and South Africa caught many off guard. So why have these countries suddenly moved now, and what does it mean for the ICC?

Each country had a specific reason to jump. With respect to Burundi, the ICC Prosecutor announced last April that she was commencing a preliminary examination there that would focus on killing, imprisonment, torture, rape, other forms of sexual violence, and enforced disappearances during the previous year. Rather than face this investigation, Burundi decided to leave the Court, choosing impunity over law.

South Africa’s decision appears to have been motivated in large part by its embarrassment at being caught out for failing to abide by its international and domestic legal obligations when Sudan’s President, Omar al-Bashir, visited the country in June of 2015. Last March, the Supreme Court of Appeals in South Africa ruled that the government had breached its international and domestic legal obligations to arrest Bashir on a pending ICC warrant, and that it had violated a court order to keep Bashir in the country pending litigation on the matter. The government’s claim that Bashir was protected by head of state immunity was rejected by the court (as it has been repeatedly by the judges at the ICC). Last Friday, the government withdrew its appeal of the Court of Appeals decision, presumably concluding that any further arguments it could make were meritless. In light of these developments, its announcement on the same day that it was leaving the ICC appears to be a fit of political pique. Having lost its battle to justify protecting Bashir from arrest, Pretoria has decided to pick up its marbles and go home. Moreover, once Burundi announced it was leaving, South Africa may have wanted to assert its leadership in Africa. The story may not be over, however, as there will likely now be another round of challenges in the courts in South Africa concerning the legal validity of the government’s decision to withdraw from the Court.

In one sense, the decisions of Burundi and South Africa show the power of the law. Both governments are running from the law, which would not be necessary if they thought that the law was powerless and irrelevant.

Of course Burundi and South Africa will insist that their actions are broadly justified because of the ICC is biased against Africa, pointing to the fact that to date all but one of the ICC’s investigations have been in Africa (Georgia is the sole exception) and that all of the persons charged at the ICC are African. This accusation of bias has been relentlessly peddled by certain figures in Africa – in particular by Bashir, and by President Kenyatta of Kenya, who himself was until recently being prosecuted by the Court – but has also been a source of concern for many fair-minded observers of the Court.

The claim of bias is misplaced and obscures the real issue. The notion that the ICC Prosecutor targets Africa out of some kind of bias against the continent is both ludicrous and pernicious. The current Prosecutor is African (and was the Deputy Prosecutor under the first Prosecutor) and many of the prosecutors and judges at the Court are African. Many served in their home governments and will do so again after returning from the Court. The Office of the Prosecutor has always been open to cases outside of Africa, and sees its mission as vindicating the interests of victims everywhere, including in Africa. There is simply no agenda at the Court to single out Africa. Full stop.

In truth, the Prosecutor has decided to investigate where the Court has jurisdiction, serious crimes are being committed, and there exists a reasonable prospect that investigations will be fruitful. In this regard, it is noteworthy that of the ten current investigations, six were referred to the Court by the countries themselves (DRC, Uganda, Côte d’Ivoire, Mali, Central African Republic (twice)) and two were sent to the Court by the UN Security Council (Darfur and Libya). In each of these eight situations, the ICC Prosecutor had reasonable confidence that her investigations would be productive due to the cooperation and support she expected to receive either from the country itself or from the Security Council (though in reality it has turned out that a Security Council referral is no indicator of continuing support).

In only two situations did the Prosecutor start investigations on her own authority: Kenya and Georgia. The ICC’s cases in Kenya all failed, in significant part as a result of witness intimidation and Kenya’s failure to cooperate with the Court. The investigation in Georgia has just begun, but given Russia’s hostility to the inquiry and Georgia’s lukewarm support, the prospects of success are dim, at least in the short term.

Could the Prosecutor have made different decisions about where to investigate to the point where there would be no criticisms coming out of Africa? It is difficult to see how. Aside from the decision to investigate and prosecute in Kenya, where reasonable minds can disagree on the wisdom of the ICC’s actions, it is a little hard to see how the Prosecutor could have acted differently in a way that would have changed the debate today. When the Prosecutor received self-referrals from States Parties or the Security Council, should she have refused to act? That is hardly imaginable. One might argue that she should have also opened investigations outside of Africa, but where exactly? The ICC lacks territorial jurisdiction in places like Syria, Iraq and Yemen. In Colombia, the Court has reasonably held back as the country has sought to pursue cases itself. It is true that the Court has not moved yet in Afghanistan, a State Party, but none of the actors in Afghanistan can be expected to cooperate with an ICC investigation. Does anybody really imagine that if the ICC had commenced an investigation in Afghanistan, say five years ago, there would be no criticisms of the Court coming out of Africa today?

But to say that the ICC does not have an anti-Africa bias is not to say that there isn’t a fundamental problem. There is. It is not with the decisions of the Court, but rather with the international community’s failure to ensure accountability universally. When the UN Security Council finds the political will to refer Darfur and Libya to the ICC, but cannot also act to refer Syria or establish an alternative mechanism to ensure accountability for massive crimes being committed there, one can fairly wonder about the double standard. The criticism should be aimed not at the ICC, however, but rather at this larger failure to achieve accountability everywhere where grave crimes are being committed. It goes without saying that the decisions of Burundi and South Africa to withdraw from the ICC do nothing to further the goal of universal accountability, but only serve to undermine it.

Finally, what does this all mean for the future of the ICC as an institution? The withdrawals are not good news for the Court to be sure, but there is reason to hope that they will not be followed by a flood of additional departures. South Africa in particular has come under considerable pressure for its decision to leave by both African and international groups, as well as by the European Union and Canada. While Uganda and Kenya may also decide to leave, Côte d’Ivoire, Nigeria, Senegal, and Tunisia all joined Botswana at the last AU summit to oppose an AU call for withdrawal from the ICC. Last month, Gabon decided to refer itself to the ICC for investigation.

The international criminal justice project and the ICC have suffered setbacks before and will likely survive this one as well. Ultimately, however, the success of the international criminal justice project will not be determined by the ICC or a few countries in Africa, but by the willingness of the greater international community to commit to accountability wherever massive crimes are being committed.

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About the Author

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).