Britain’s decision to leave the EU has been labelled an ‘exceptional act of self-harm’. But is it? In October South Africa became the first country to announce its formal withdrawal from the International Criminal Court (ICC). This was soon followed by the exit of Burundi and Gambia and by Russia’s announcement that it intends to withdraw from the Rome Statute which establishes the ICC. Although the Court has been hampered since its inception by the refusal of major states such as the US, China and Russia to submit to its jurisdiction, these withdrawals represent an unprecedented challenge to its legitimacy. Things look no brighter in the area of international security cooperation, as illustrated by the slow acceptance of Additional Protocol safeguards under the NPT and the failure of Annex 2 countries to ratify the Comprehensive Treat Ban Treaty. Even longstanding alliances seem at risk of unravelling. In June Uzbekistan announced its (re-)exit from the Collective Security Treaty Organization, and NATO leaders are growing increasingly nervous that the Trump Administration will turn its back on America’s allies. Meanwhile, there is a growing trend towards withdrawal from and denunciation of international human rights treaties, the G8 has shrunk to the G7, and the use of UNSC vetoes—which were at a historic low during the 1990s—is once again on the rise.
The news that three African states—Burundi, South Africa and now The Gambia—will quit the International Criminal Court marks a setback in the long struggle against impunity for grave crimes. Although the politics are specific to each country, the common thread underlying each of the three departures is cynical self-interest.
A number of Burundi’s current leaders no doubt fear that the Court, currently conducting a preliminary inquiry, may charge them with crimes against humanity for political violence which has taken the lives of hundreds of civilians and forced hundreds of thousands to flee. Indeed, Burundi’s notice of ICC withdrawal immediately followed its suspension of the activities of the UN human rights office to protest a UN report implicating the country’s security forces in massive rights violations.
The Gambia’s president, Yahya Jammeh, who came to power 22 years ago in a military coup and once infamously threatened human rights defenders with death, has been spouting further incendiary rhetoric in the run-up to elections this December. His Minister of Information’s characterization of the ICC as “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans”, seems designed to employ anti-ICC rhetoric to hide the facts of the regime’s ugly record.
On 4 April, the International Criminal Court (ICC) suffered the most significant setback in its nearly 14 years of existence.
In a majority decision, judges terminated the case against Kenyan Deputy President William Ruto and Nairobi radio executive Joshua arap Sang.
This brought to an ignominious end the court’s attempt to administer justice for the crimes committed during the post-election violence in Kenya in 2007/2008, during which over 1 300 people were killed and more than 600 000 displaced.
‘On the basis of the evidence and arguments submitted to the chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, as the majority, agreed that the charges are to be vacated and the accused are to be discharged,’ said a statement issued by the ICC. In a subsequent statement, the ICC’s prosecution team blamed a lack of cooperation from Kenya and widespread witness intimidation for its difficulty in obtaining evidence.
It didn’t help, of course, that Kenyatta and Ruto became president and deputy president only after the charges against them were lodged, greatly complicating the politics around the case. Against overwhelming opposition from Kenya, it was never going to be easy to make the charges stick.
On Monday 21 March, the International Criminal Court (ICC) found former Congolese vice-president and former rebel leader Jean-Pierre Bemba guilty of war crimes and crimes against humanity. Although the charges emanate from crimes committed in Central African Republic (CAR) in 2002 and 2003, his guilty verdict affects not one, but two African countries.
First, in CAR where the ICC found that troops belonging to Bemba’s rebel group Mouvement pour la Liberation du Congo (MLC – the Movement for the Liberation of the Congo) committed the international crimes of rape, murder and pillaging at his behest. Second, the neighbouring Democratic Republic of Congo (DRC) where Bemba’s arrest and elimination from the political scene in 2008 significantly changed the political landscape.
In late 2002, Bemba – then MLC leader – sent his troops to assist CAR’s president at the time Ange-Félix Patassé. Patassé was attempting to quell armed attacks from François Bozizé, the man who would eventually overthrow him. At this point Bemba had been relying heavily on Patassé; using Bangui as his rear logistics base during his rebellion against DRC President Joseph Kabila. Responding to Patassé’s call for help was in many ways a survival strategy for Bemba. Despite these efforts, Bozizé ousted Patassé in March 2003.
As the 26th ordinary summit of the African Union (AU) ended in Addis Ababa on Sunday, Kenyan media led with reports that ‘the African Union has adopted, without amendments, a proposal by President Uhuru Kenyatta to develop a roadmap for withdrawal from the Rome Statute’ – as the Daily Nation put it.
What had actually unfolded was a little more nuanced. The AU heads of state did not decide to withdraw from the International Criminal Court (ICC) en masse – yet. Nor even did Kenyatta ask for that. In his speech to the AU Assembly, he asked the summit to give the Open-Ended Committee of African Ministers on the ICC ‘a new mandate to develop a roadmap for withdrawal from the Rome Statute as necessary.’
The key phrase here is ‘as necessary.’ The rest of his speech makes clear that withdrawal from the ICC would be conditional on the court failing to meet the AU’s demands. As Kenyatta said earlier in his speech: ‘It is my sincere hope that our ICC reform agenda will succeed so that we can return to the instrument we signed up for. If it does not, I believe its utility for this continent at this moment of global turmoil will be extremely limited. In that eventuality, we will be failing in our duty if we continue to shore up a dysfunction(-al) instrument.’