ICC: Is Africa ready for Exit?

In recent years, the International Criminal Court (ICC) has received a lot of criticism from African governments. Some have accused it of selectively harassing African leaders, while others are proposing the amendment of the Rome Statute, the principal instrument that constitutes the court.

The tension between Africa and ICC intensified in 2015, when South Africa was put on spot for allegedly refusing to arrest President Omar Al-Bashir of Sudan, during an African Union meeting. Mr. Bashir’s arrest warrant was issued in 2009, over alleged war crimes and crimes against humanity.

Despite being issued court orders to prevent the Sudanese leader from leaving the country, the South African government facilitated his departure, arguing that Mr. Bashir had diplomatic immunity. Later, a South African court ruled that the government’s move was unconstitutional.

Article 59 of the Rome Statute highlights the state parties’ obligation to arrest culprits on behalf of the Hague-based court.

It states that:

“a state party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws…”

In a ruling made on July 6, the ICC blamed South Africa for neglecting its duty and commitment to the court, citing the fact that the country’s domestic courts had guided the government on the matter, but it incisively defied them.

The reliance of ICC on state parties for arrests and other forms of enforcement is in itself a major weakness, since state parties are bound by other, regional bodies, a factor that has caused more contradictions. For instance, the issue of trying sitting African presidents.

Several African leaders, under the AU umbrella, showed dissatisfaction when Kenya’s President Uhuru Kenyatta and his deputy William Ruto were indicted and tried by the ICC despite being sitting president and deputy president respectively.

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The indictment followed the 2007 post election violence, which caused over a thousand deaths. The case was later dismissed on grounds of non-cooperation from the government of Kenya.

Some critics see the move to withdraw from the ICC as an escapist approach by dictatorial leaders, who fear indication.

Burundi was certainly the first African country to show signs of quitting the international court. In 2015, when President Pierre Nkurunziza’s plan to seek another term in office spurred violence, Burundi didn’t only issue threats; it began a process of withdrawing from the ICC, which will be completed in October.

Yahya Jammeh, ex-Gambian leader who allegedly committed atrocious crimes during his time in office, was also pushing for withdrawal. However the withdrawal request was repealed after the arrival of President Adama Barrow’s administration.

Although the ICC’s legitimacy has been questioned by African leaders, including Uganda’s Yoweri Museveni who, upon referring to it as ‘a bunch of useless people’ announced his intention to mobilize fellow leaders against the court, it is becoming more apparent that Uganda’s withdrawal is also unlikely in the short-run.

In April, Uganda’s Attorney General, while briefing parliament, denied allegations that Uganda was planning to quit the ICC.

Mr. Byaruhanga clarified that the government was more concerned about reforming the Rome Statute, as opposed to quitting the Hague-based tribunal as had been alleged.

It should be remembered that the first conference to ever review the Rome Statute pursuant to its article 123 was held in Uganda, in 2010.

At this meeting, state parties agreed that the definition of the crime of aggression be included in the Rome Statute. This reform awaits ratification by over 30 states, then it will be voted upon before it becomes binding.

It should also be noted that in 2005, Uganda referred a case against the Lord’s Resistance Army (LRA) commanders to the ICC, becoming the first country to ever refer a case to the International Criminal Court.

Although quitting the ICC is not a complicated process, analysts warn that since the plan to establish a continent-based court is still on paper, abandoning the court now may leave a huge justice gap.

Africa has witnessed many political conflicts in the last 20 years. 9 of the 10 cases that have been handled by ICC come from Africa.

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The most recent conflicts in the region include the war in Somalia and the South Sudan civil war which have led to the killing of hundreds of thousands and displaced millions, most of whom are women and children.

Much as solving these conflicts is necessary, it is crucial that victims in these communities receive justice. Despite the shortfalls, ICC has demonstrated its commitment towards establishing universal justice and guaranteeing human dignity.

The answer to the question of whether Africa is ready to leave the International Criminal Court, therefore, hinges on the level of commitment of individual African nations in the pursuit of lasting peace and justice for the African people.

But in the long run, African nations must establish their own justice system, which shall sustainably bring criminals to justice, without being accused of bias, or illegitimacy.

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