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Oct 27, 2016 | 00:18 GMT

7 mins read

Why Africa Is Turning Its Back on the International Criminal Court

On Wednesday, Gambia became the third country, after Burundi and South Africa, to announce its withdrawal from the International Criminal Court, highlighting the body's inefficacy and its disproportionate tendency to prosecute African leaders.
(SEYLLOU/AFP/Getty Images)
It can be difficult to separate the important from unimportant on any given day. Reflections mean to do exactly that — by thinking about what happened today, we can consider what might happen tomorrow.

Wednesday's news that Gambia will withdraw from the International Criminal Court (ICC) — along with Burundi and South Africa — further establishes the practical irrelevance of the court. The countries are the first three signatory members to begin the process to formally leave the institution, which has long struggled to enforce its actions. (The process requires sending official notification to the U.N. secretary-general and a one-year wait period.) That the countries are all pulling out of the ICC at the same time is not surprising and can be attributed to several factors. First, there is the general perception that the institution is an imperialist tool of the West to pursue its interests. Moreover, African leaders are more likely to face prosecution by the court than leaders in other regions. And finally, even those countries unlikely to be targeted are hesitant to support its actions for fear of disrupting regional economic and political ties.

The ICC, which has operated out of The Hague since 2002, is a U.N. body that can prosecute individuals who have committed war crimes, genocide and other crimes against humanity. Its jurisdiction covers places where recognized governments are unwilling or unable to carry out judicial processes themselves. There are three ways for a case to be referred to the ICC: by the U.N. Security Council, by an ICC member state or by individual ICC prosecutors. A country does not have to be a member of the ICC for one of its citizens to be prosecuted. So unsurprisingly, the ICC is often at odds with national governments (even though it relies entirely upon them to enforce its verdicts).

That Burundi and Gambia would opt to withdraw from the ICC should come as no surprise: Both are the target of ICC actions. Burundian President Pierre Nkurunziza forced his way into an unconstitutional third term in July 2015, and his government cracked down on the ensuing social unrest in an effort to stay in power. Widespread allegations of human rights abuses, including torture, have provoked international sanctions against Burundi along with regional diplomatic efforts to prevent more bloodshed. In April, the ICC began investigating the widespread reports of violence and the degradation of basic human rights.

Gambia has also come under international scrutiny — albeit less than Burundi — for its human rights abuses. Those deemed dissidents in the tiny West African country are routinely arrested and subjected to arbitrary detention, and often much worse. Gambia has a history of taking symbolic stands against international organizations. In 2013, the country pulled out of the Commonwealth of Nations — a group mostly made up of former British territories — on the grounds that it was a neocolonial institution. It is making similar claims this time. Gambian leaders may one day be vulnerable to ICC prosecution regardless of membership status, but by leaving the organization, they are able to take a symbolic stand against a court that they feel unduly targets African leaders while ignoring African input.

South Africa has other reasons for leaving. Its government, in stark contrast to Burundi's and Gambia's, is a maturing multiparty democracy that generally upholds human rights. Thus, its exit from the ICC is much more significant. According to South African leaders, two factors influenced the decision. First, the ICC's jurisdiction clashes with South Africa's commitment to respect the immunity afforded to African heads of state. Second, membership in the international body at times conflicted with the country's goal to promote peace and stability on the African continent.

This first explanation harkens back to a 2015 episode involving Sudanese President Omar al Bashir. In June 2015, al Bashir traveled to South Africa for an African Union summit. It was his first trip there since the ICC issued a warrant for his arrest on charges of genocide in 2009 related to the long-running Darfur conflict. Soon after the Sudanese leader landed, a South African court barred him from leaving the country until a decision on whether to comply with the warrant could be made. Al Bashir, however, defied the court's order — with the aid of the South African government — and hastily fled back to Sudan.

The episode demonstrated the ICC's impotence to actually enforce its demands without the support of national governments. It also exemplified the kind of conflict that can arise when the ICC's mission contradicts a government's desire to maintain strong relations with its regional partners. If the South African court had ordered that al Bashir be extradited to The Hague to face genocide charges, relations between South Africa and Sudan — and possibly between South Africa and other African countries — would have deteriorated. Instead, Pretoria sought to prevent any diplomatic fallout, allowing al Bashir to depart before any diplomatic crisis unfolded. South Africa chose its national imperatives over those of the international body. This is the ICC's biggest weakness: its total reliance on national governments for enforcement.

Historical precedent also supports the claim that South Africa has a duty to promote the peaceful resolution of conflicts and that the ICC sometimes inhibits it. Because of its influence across Africa, South Africa has acted as a diplomatic broker and a haven for numerous individuals forced into exile over the years. It is therefore not unreasonable that the South African government believes its interests are hindered by being part of an international organization that conflicts with its aims across the continent. Moreover, it has been argued that the ICC has incentivized war criminals to maintain power for longer periods of time because of the fear that they would be tried once out of power. Additionally, any power transition deal they could cut for a safe exit — possibly to end a protracted conflict —  would in theory be null and void if an international warrant for their arrest were issued by the ICC.

The common factor in the departure of all three countries is the underlying perception that the ICC is an outside institution imposing its will on African nations without their input, perpetuating a history of Western intervention and African oppression. To date, the court has indicted 39 people for various crimes, and each one has been African (Moammar Gadhafi, indicted in 2011, was a significant proponent of Pan-Africanism). In a display of dissatisfaction, Rwanda hosted a conference with the heads of more than 51 African intelligence and security agencies themed "Countering the Growing Threat of Abuse of Universal Jurisdiction Against Africa." There, Rwandan President Paul Kagame minced no words when he said the ICC had "deviated from its mandate and ... been hijacked by powerful Western countries to pursue their political agenda."

The sentiment is not unwarranted. African leaders and citizens are the most likely to be tried by the ICC given the inherent weaknesses of their states, and less geopolitically relevant African states are less likely to have powerful allies to prevent attempts to prosecute them. Furthermore, since 2002, the types of crimes the ICC was intended to combat are much more likely to occur in Africa than they are in other continents. There is also a history of African rulers clinging to power for long periods of time — and several leaders have pushed to extend their mandates recently. This has caused significant social unrest and violence in some African countries, giving the ICC an opportunity to investigate abuses. Consequently, African leaders who are considering extending their mandates — as Kagame almost certainly is — will be even more opposed to the perceivably meddlesome influence of the ICC. Therefore, the turn against the ICC by some African states is intuitive, but it will not necessarily "weaken" the already feeble institution. Instead, it merely exposes the problems inherent in the court's enforcement mechanism and the animosity that it has engendered across the African continent.

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