Three African States Announce Intention to Exit the International Criminal Court

Three African States Announce Intention to Exit the International Criminal Court

Image: The International Criminal Court, The Hague, The Netherlands.

 

The International Criminal Court faced some heavy blows this week. The Netherlands based Court,

empowered to try cases of mass atrocity crimes which fall within its mandate, was confronted by the news

that three African states intend to withdraw cooperation with the Court. South Africa, Burundi and The

Gambia have different reasons for deciding to leave.

 

South Africa’s decision to leave is rooted in the intense international, regional and national pressure that

has been placed on President Jacob Zuma. President Zuma failed to act on an International Criminal

Court arrest warrant for Sudanese President Omar al-Bashir. Bashir was indicted by the Court to face

allegations of genocide, war crimes and crimes against humanity but officials in South Africa did not

proceed to arrest him while he was in South Africa and transfer him to the Court’s custody.

 

President Zuma argued that the arrest was not carried out because it went against the African Union’s

principle to grant immunity from prosecution for sitting heads of state. Zuma has been continually

condemned for this failure and, as a result, decided that the best route forward is for South Africa to leave

the International Criminal Court.

 

Burundi President Pierre Nkurunziza’s argued that the International Criminal Court is biased against

countries which do not support the policies of western states. Nkurunziza proceeded to sign national

legislation to support exiting the International Criminal Court.

 

Burundi’s withdrawal announcement followed the International Criminal Court’s chief prosecutor stating

in April that the Court intended to open a preliminary investigation into allegations of crimes, including

rape and sexual violence, occurring in Burundi. In addition, at the end of September the United Nations

Human Rights Council confirmed that it would be establishing a commission of inquiry to evaluate

reports of human rights violations in Burundi.

 

President Nkurunziza’s move was strongly condemned by Human Rights Watch. The organisation’s

Africa Director, Daniel Bekele, said in a statement that “Burundi has failed to hold people responsible for

brutal crimes to account and has sunk to a new low by attempting to deny victims justice before the ICC

[…] This latest move only confirms Burundi’s continuing disregard for human rights and the rule of law.”

 

The Gambia’s announcement that it would be leaving the International Criminal Court was particularly

difficult for the Court because the present chief prosecutor, Fatou Bensouda, is a Gambian national. The

Gambia echoed similar views to Burundi, accusing the Court of being prejudiced against Africans.

 

Notably, The Gambia has been, for some time, calling for European states to be tried by the International

Criminal Court in connection with thousands of African migrants dying while trying to reach Europe.

 

Speaking at the United Nations in the aftermath of Burundi, The Gambia and South Africa’s exit

announcements, President of the International Criminal Court, Judge Silvia Fernández de Gurmendi,

urged that continued state cooperation with the Court was the best way of ensuring international criminal

justice.

 

The Court President explained that the Court’s creation in 1998 showed that “states recognised the link

between justice, peace, and sustainable development, and reaffirmed their commitment to fight impunity.” The

President also took the chance to recall that the Court is complementary to national judicial proceedings, advising

that “the role of the Court is to provide justice only when States fail to do so.”

 

The President went on to emphasise the Court’s achievements to date. “The Court is doing its work,” she

said. “Since its creation, the Court has made significant achievements in addressing crimes of concern to

the international community as a whole.”

 

The President concluded by drawing attention to the Court’s work with victims of the crimes it covers,

saying that the Court “has given a voice to victims, who have the possibility to participate in the Court’s

proceedings and to request reparations. The Trust Fund for Victims associated with the Court has already

assisted more than 300.000 victims with physical and psychological rehabilitation as well as material

support.”

 

JDH