South Africa, the AU, and the Tensions Around the Role of the ICC in Africa

[caption id="attachment_9686" align="aligncenter" width="615"] The International Criminal Court building looms over The Hague, Netherlands. Photo by Vincent van Zeijst, Creative Commons via Wikimedia Commons.[/caption]

The tensions between the African Union (AU) and the International Criminal Court (ICC) are not new. When the ICC indicted Sudanese President Omar al-Bashir in 2009 for crimes against humanity, war crimes, and genocide committed in Darfur, the AU raised concerns about the jurisdiction of the court to do so. In 2016, he has yet to be arrested. When the court issued a warrant for the arrest of the now-deceased President Muammar Gadaffi of Libya in 2011, the AU again rejected the right of the ICC to indict a sitting head of state. In the same year, President Uhuru Kenyatta of Kenya was ordered to appear before the court on five counts of crimes against humanity with regard to the election violence in Kenya. The war crimes trial of former President Laurent Gbagbo of Côte d'Ivoire began in December 2015, rekindling criticisms of the international justice system from across Africa.

At a heads of state meeting in Addis Ababa from January 21-31, 2016, the President of Zimbabwe, Robert Mugabe, led a charge for African countries to withdraw from the ICC en masse, alleging it is an anti-African court.

This call, initiated by Kenya, was probably a result of the case against Deputy President William Ruto of Kenya, as well as a response to the start of the Gbagbo trial and the near-arrest of Bashir in South Africa in June 2015, when he attended the Forum on China-Africa Cooperation (FOCAC) leadership summit.

Bashir in South Africa

The South African incident was particularly controversial, as Bashir was allowed to leave the country despite a court order to remain in South Africa. South Africa has ratified the Rome Statute and is a member of the Court. In addition, the Rome Statute has been domesticated in South African law through an act promulgated in Parliament, the Implementation of the Rome Statute of the International Criminal Court Act No. 27, 2002. This means that the obligations under the statute are now part of South African law and the country is subject to the court's jurisdiction. This legislation allows local courts and the police service to co-operate with the ICC in apprehending suspects indicted by the ICC and to ensure that South Africa fulfills its domestic treaty obligations to investigate individuals.

The High Court in Pretoria thus had a binding obligation to issue a warrant for the arrest of al-Bashir. In addition, the 1998 Rome Statute (the founding statue of the ICC) provides that even if an individual is not a citizen of a member state of the ICC and/or the atrocities did not occur within the geographical confines of the state, it is still possible for the ICC to expect the state to execute the warrant of arrest, such as in the case of Bashir in South Africa. The ICC has in fact requested the government to explain why he was allowed to leave the country (the government's response accused the ICC of "act[ing] against the letter and spirit of the Rome Statute"). The government's response can be found at . This situation reflects the deep ambivalence many African governments feel towards the court and its actions against African heads of state.

Withdrawing from the ICC?

Based on the call for withdrawal of African countries from the Court, it is important to understand the role and jurisdiction of the ICC. Article 5 of the 1998 Rome Statute provides that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this statute with respect to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.

The pressing issue is whether African countries should withdraw because of the perceived anti-African bias of the ICC. The following facts can assist in thinking through the answer to this question:

1. Since 2012, Fatou Bensouda, a Gambian woman, has been the Chief Prosecutor, having replaced controversial Argentinian lawyer Luis Moreno-Ocampo.
2. Of the 18 full time judges, 4 are from Africa: Joyce Aluoch (Kenya), Chile Eboe-Osuji (Nigeria), Antoine Mindu (DRC), and Sanji Monageng (Botswana).
3. To date, it is true that more cases have been focused on Africa. But this does not necessarily imply that the ICC is targeting Africa. Three of the African situations currently under investigation were self-referred, and two more were referred by the UN Security Council. Of these, the DRC, Benin, and Tanzania voted in favor of the UN Security Council's referral of the Darfur situation to the ICC; and South Africa, Gabon, and Nigeria voted in favor of the UN Security Council's referral of the Libya situation to the ICC. Similarly, Côte d'Ivoire accepted the jurisdiction of the ICC and undertook to cooperate with the ICC. Likewise, Kenya's President Kibaki and Prime Minister Odinga pledged support to the prosecutor's independent decision to open an investigation into crimes in Kenya. Most recently, Mali referred the crimes occurring on its own territory to the court, a decision that was supported by ECOWAS.
4. Based on this criticism, the Court is also focusing its energies elsewhere, investigating the situation in Georgia and considering Palestine. This is slow progress, but it indicates a willingness to acknowledge the impressions created if all the cases heard by the court relate to conflict in Africa.
5. Based on its origins in the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), the purpose of the court is to ensure that justice is served and that the rights of the vulnerable are protected. It thus exists to check state power and to hold individuals accountable for atrocities.
6. Despite concerns arising since 2009, the DRC has partially domesticated the Rome Statute. On 2 January 2016, President Kabila officially promulgated a series of legislative bills, known collectively as la loi de mise en œuvre du Statut de Rome, which brings key aspects of Congolese criminal law into line with international standards. Thus, while concerns have been expressed through the AU, some individual states see the situation differently.
7. The oft-raised fact that the United States and China are not members of the ICC should not preclude other states from 'doing the right thing,' so to speak.
8. South Africa was one of the founding members of the ICC, and former President Nelson Mandela articulated his government's support for the court in an opening address at the 2nd Conference of African National Institutions for the Promotion and Protection of Human Rights, Durban, 1 July 1998 as follows:
   "We have sought to ensure that the ICC is guaranteed independence and bestowed with adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court."

All of this is to say, the situation is more complicated than the court's detractors allow. The ICC may very well be flawed, but so are global governance institutions such as the International Monetary Fund, the World Bank, the World Trade Organization, and the UN Security Council. There is a push to transform these organizations in order to ensure better and more inclusive governance by multilateral bodies such as BRICS. Thus, rather than simply withdrawing from the ICC – which in South Africa's case would mean repealing an Act of Parliament – it would surely be better to push for the reform of the Court, including reforms of its membership and composition, to enable it to conduct its work impartially. Another step in the right direction would be for Africa to be given a permanent seat in the UN Security Council so as to be directly involved in peace and security issues on the continent. Of the "Big Five" (United States, China, Russia, France, and the United Kingdom), only two, the UK and France, are currently members of the ICC.

There is currently no alternate court on the African continent and until there is, the ICC will continue to be necessary. In the event that all 35 of its African members withdraw, the Court would collapse, which would be a great blow to the future of international criminal justice. This outcome is, however, unlikely, as the AU cannot speak for the national interests of any member state based on principles of sovereignty in international law.

Professor Narnia Bohler-Muller is Executive Director of the Africa Institute of South Africa, Human Sciences Research Council in Pretoria, South Africa, a member of the Carnegie Corporation of New York-funded Southern Voices Network, and adjunct Professor of Law at the University of Fort Hare.