In November 2016, three different African countries announced their withdrawal from the International Criminal Court (ICC), followed by a similar statement by the African Union (AU) in January 2017.1 A year later, on the 27th of October, Burundi became the pioneer of this movement and the first member state of the ICC to actually withdraw.2 The consequences of this decision are substantial, both for the institution of the ICC within the wider international justice domain, and for the Burundians who live under an increasingly violent regime. (Featured Image © Wikimedia Commons)
Established in 2002, the ICC has a mandate to prosecute people who committed genocide, war crimes and crimes against humanity. There are three ways in which a case can be brought to the court. Each member state can refer cases committed by one of their citizens or on their territory. The ICC can decide to open an investigation itself. A last option is for the UN Security Council to refer cases directly to the ICC, even when the territory in which the crimes were committed do not belong to, or the accused is not a national of a member state.3
Burundi’s Decision to Leave
So why would member states leave? Burundi’s decision did not come as a big surprise. In April 2016, the ICC announced the start of an investigation into the events that took place in Burundi after president Nkurunziza decided to run for a third term, for which he had to change the constitution. Instability and violence have since disrupted Burundi’s society, and stories about murder, rape and torture are widespread.4 When the ICC announced its intention to investigate, Burundi decided to leave.5
On the other hand, South-Africa also announced (but later reversed) leaving the ICC, although there are no pending cases against the country or its leaders. It even had the reputation of being a strong proponent of the court.6 Clearly, other issues are at play here.
The Problems of the International Criminal Court
The majority of the cases brought to the Court concerns Africans.7 Additionally, it is perceived that similar crimes in other parts of the world are ignored. This has made African leaders, especially those in favor of Pan-African politics and institutions, distrusting of the Court’s intentions.8 Valérie Arnould of the Egmont Institute addresses four main issues surrounding the ICC, specifically in its relationship with African countries.
She states that the ICC wrongly assumes that the values and norms it upholds are universal.9 The most prominent example is the discussion about immunity for sitting heads of state. The ICC has opened investigations into alleged crimes by active political leaders in both Sudan (President al-Bashir for his actions in Darfur) and Kenya (the post-election violence of 2008 that saw 1300 killed).10 While the AU does not advocate impunity, it believes that these prosecutions can undo ongoing mediation efforts by their part or create unrest in unstable countries.11
For most states, their opinion about the Court is a balancing act between international, domestic and regional political interests
A second issue discussed by Arnould is the ambivalence of many African states towards the ICC.12 For most states, their opinion about the Court is a balancing act between international, domestic and regional political interests. Being a member state of the ICC offers legitimacy on the international level, but can have the opposite effect at the regional level. Solidarity, sovereignty and territorial integrity are among the core principles of the African Union.
On the domestic level, the ICC can offer a welcome solution in dealing with armed groups, and offer justice for citizens to stabilize the country. However, it might also be possible the Court wants to prosecute the active political leadership, in which case the ICC is not seen as welcome at all. This is a crucial element in Burundi’s decision to leave.13
Thirdly, the relationship between the United Nations Security Council (UNSC) and the ICC is felt as problematic as well.14 The process of referral of the cases, and more specifically the role the UNSC plays in it, contributes strongly to the accusations of bias. The non-membership to the ICC of the permanent UNSC members Russia, China and the United States only fosters this critique.
The ICC cannot decide to prosecute non-members itself, this happens only when the UNSC refers the case. This is how the case against Omar al-Bashir, the current president of Sudan was initiated, although Sudan is not a member of the court.15 Contrary, any case against Russia, China, the US or its allies that the Security Council could otherwise refer to the Court, would be vetoed by the respective UNSC member state. Three countries hold almost all the decision-making power in the domain of international justice, but cannot be held accountable themselves.
Lastly, Arnould claims the ICC is increasingly monopolizing the justice field. Not only by its own doing, but often by the way it is treated by other actors, such as human rights advocates and experts.16 In its origins, the ICC was not seen as the principal Court to achieve justice, but as an institution that can provide it when a state is ‘unwilling or unable’ to do so. Since its establishment, it has shifted from an institution of ‘last resort’ to an institution that claims jurisdiction even when states or other relevant actors take action to guarantee justice.
Furthermore, the understanding of what bringing justice means has narrowed to prosecution and accountability to the detriment of other justice responses, such as truth commissions, reconciliation efforts, and cultural-sensitive responses in general. The African continent has had some horrible atrocities to endure, and many efforts have been made to assure this will not happen again.
The analysis of Arnould about the bias makes clear that it is not only an issue of perception, but that valid points of critique exist. Aspects about the ICC’s institutional set-up and its functioning have created a system of justice in which not every country is held to the same standard. However, the critique is critiqued as well.
The institution is flawed, but the best way to change it is not by leaving it, but to change it from within
First of all, most vocal about this bias tend to be the leaders who fear prosecution themselves.17 Secondly, the critique about an African bias is not voiced by all African member states.18 Furthermore, most cases involving Africans were referred to the court by the member states themselves.19
Out of the eight African cases that had been opened up by October 2016, only two were referred to by the UN Security Council, namely Libya and Sudan. Only one was opened by the ICC itself, to investigate the responsibility of the Kenyan political leadership in the post-election violence of 2008.20 Admittedly, the institution is flawed, but the best way to change it is not by leaving it, but to change it from within.
What Remains of the Pursuit of Justice
The risk exists that this is the start of a so-called “African exodus” from the International Criminal Court, which would further delegitimize its work.21 According to Professor David Bosco, such a large-scale withdrawal could negatively influence funding, and with it the impact of the ICC in its remaining member states. Countries will question whether they prefer to invest in a court which is not widely recognized.
Any withdrawal has a negative impact on the legitimacy and credibility of the court, and on the international community’s ability to positively impact peace and justice worldwide. Victims of the worst crimes that can be committed would have more difficulties receiving justice.
Any withdrawal from the ICC has a negative impact on its legitimacy and credibility, and on the international community’s ability to positively impact peace and justice worldwide
However, this feared exodus is not yet set in stone. The countries that withdrew faced a backlash from their own population, with even a court filing in South-Africa that led to a halt of the withdrawal. New political leadership in the Gambia even stopped their process of withdrawal altogether.22 Some countries do not particularly fear the ICC, so are not eager to invest in leaving it. And as said before, the ICC has some African supporters as well.
Both Professor Bosco and Valérie Arnould offer suggestions for improvement. Two main issues need to be resolved in this regard. First of all, the functioning of the ICC. It will be crucial that Court accepts that different viewpoints exist about bringing justice. Furthermore, it should respect the African approach in bringing it. An enhanced dialogue between African judicial institutions and the ICC is in order.23 According to Professor David Bosco, it could be a solution for the ICC to focus on the middle-men in their investigations, and to divert from prosecuting high-level political leaders, which has created diplomatic tensions and distrust.24
The crucial flaw is not necessarily the higher number of cases involving Africans, but the impunity towards other nations and their nationals when equally serious crimes were committed there
Secondly, on an institutional level, change needs to come too. The unbalanced decision-making power of the UNSC is problematic, since this has allowed their referrals to be politicized.25 The crucial flaw in the ICC is not necessarily the higher number of cases involving Africans, but the impunity towards other nations and their nationals when equally serious crimes were committed there. Syria is nowadays the most prominent example, its current leadership safeguarded from prosecution thanks to Russia’s veto.26
For the Burundians, justice and peace will not return to their country soon. Many NGOs, such as Amnesty International and Human Rights Watch, have warned for a further deterioration of the human rights situation, and an increase of the violence used by the political regime.27
The overall pursuit of justice would fare well if everyone had a seat at the table
However, on the 9th of November, the ICC announced that it will open an investigation into the alleged crimes committed by the Burundian regime, stating that the country can still be held accountable for crimes that took place when Burundi was still a member state.28 This decision was met by critiques from the East African Community, stating that it undermines their ongoing mediation efforts with the Burundian regime.29
While an exodus may be a too dire a prediction for the future of African nations in the ICC, the withdrawal of Burundi should be treated as a warning sign. The critiques towards the ICC should be properly addressed, both regarding its set-up and its functioning. The overall pursuit of justice would fare well if everyone had a seat at the table.30
P.S.: in the beginning of 2017, Foreign Affairs conducted an interview with Fatou Bensouda, the chief prosecutor of the ICC, which is an interesting additional read.