Criminal court membership crucial for international justice

The recent move by three African countries to leave the International Criminal Court is unfortunate and shows a lack of priority in matters relating to international justice and human rights protection. In a matter of weeks, Burundi, South Africa and The Gambia announced their solid intentions to leave the ICC on grounds that it only targets weaker African countries and their leaders. The unprecedented attempt comes amid accusations of partiality and increased questioning of the ICC’s legitimacy as a supranational institution. With 124 member countries—34 of whom are African—the ICC was established as a permanent court in charge of judging war crimes, crimes against humanity and genocide that member countries are either unable to or refuse to prosecute themselves.

Currently, the most substantial justification for leaving the ICC is that since its official 2002 formation, only African nationals have been indicted on charges. Furthermore, of the 10 current cases under investigation, nine involve African countries, according to The Guardian. 

Critics who point to this seemingly judicial anomaly fail to simultaneously recognize that the ICC does have preliminary investigations in Colombia, Iraq, Afghanistan and Palestine. Furthermore, the ICC can only prosecute cases from countries that have ratified the court. While there is legitimate criticism against the court, the actions of these three countries are highly calculated and influenced by hidden political agendas.

Given the history of African leaders’ blatant disregard for the rule of law, it is not a farfetched conclusion to say that the decision to leave the ICC is linked to the desire to more easily oppress citizens by undermining democratic provisions. South African bishop and Nobel laureate Desmond Tutu’s reaction sums it all up: “African leaders behind the move to leave ICC are effectively seeking license to kill, maim and oppress their people without consequences.”

As one of the first countries to ratify the ICC, South Africa’s decision to withdraw is contradictory to the country’s preexisting symbolism of justice in international criminal matters. South Africa’s decision comes after it was criticized for failing to arrest Sudanese president Omar al-Bashir during his visit to the country in June 2015.

Al-Bashir is wanted for war crimes and genocide in the Darfur region and is significant for being the first sitting head of state to have an arrest warrant by the ICC. South Africa justified its retreat, stating that membership in the ICC conflicts with its commitment to “diplomatic immunity.”

This justification is not satisfactory. As a prominent African country, South Africa ought to set an example of refusing to nurture a culture of impunity by fulfilling its responsibilities and obligations as an ICC member. This way, it can help deter undemocratic government actions and reaffirm that no one is above the law, regardless of his or her political position.

As for Gambia, the nation defended its move by essentially accusing the ICC of being a new agent of colonialism and a racist body used to persecute and humiliate non-whites. Allegations of neocolonialism against the ICC are difficult to prove because first, the court’s formation was highly supported by many African countries that wanted to end impunity and to enforce rule of law within their borders.

Second, Africans—not outsiders—bring the majority of cases forward to the ICC. Third, African nationals hold a good number of key positions such as president of the assembly of member states, prosecutors and various judges within the ICC.

Burundi, South Africa and The Gambia should reconsider their decision to leave the ICC, which has consequences beyond their borders. Not only is this decision a threat to justice, but it also risks causing a domino effect in other countries, which might lead to democratic backsliding.

Deserting the ICC is not a solution. Dissatisfied countries must work within this institutional framework to restructure it and to create a more universal system of justice. This will be difficult given that powerful countries such as the United States, China and Russia have yet to ratify ICC membership. I believe that making the ICC more universal will help establish a broader horizon for justice.