It’s now been a few weeks since Burundi and South Africa signalled their intention to withdraw from the International Criminal Court (ICC). Barring any changes or decisions to reverse course, by October of next year the number of ICC member-states will drop to 122. But so far, the widespread, doomsday predictions of an Africa-wide mass departure from the ICC has failed to materialize. Even if more states do join the ICC-exit parade (and they likely will), there has been no “domino effect” or “mass exodus”. Still, the decision of Burundi and South Africa to withdraw from the ICC has drawn a line in the sand, one that undermines the anti-ICC movement on the continent.
The tumult characteristic of the Africa-ICC relationship is nothing new. As the relationship between the US and the ICC began to warm in the mid-late 2000s, the relationship with certain African states began to sour. A specific group of states has led the way: Sudan, whose president, Omar al-Bashir faces two arrest warrants from the ICC; Ethiopia, a non-member state which hosts the seat of the African Union (AU); Kenya, whose President Uhuru Kenyatta and Deputy President William Ruto have faced trial at the ICC; Uganda, which coincidentally has benefited tremendously from the ICC’s investigation into the war in the north of the country; Rwanda, which has been a long-standing sceptic of the ICC and international criminal justice; and Zimbabwe, led by Robert Mugabe, an opponent of anything that might be perceived as Western.
The governments of these states successfully galvanized scepticism of the ICC’s role in Africa. They did so by masterfully combining legitimate criticisms (e.g. the ICC’s far-too-cosy relationship with the United Nations Security Council and its propensity to investigate weak states) with reductionist rhetoric (the ICC as “racist”, “neo-colonial” and “against Africa”). The Court and its proponents did themselves no favours in deriding sceptical voices in Africa by insisting that any anti-ICC rhetoric was the work of a small handful of angry African governments.
And yet, the decision of South Africa and Burundi have polarized African states on the issue of the ICC and given credence of a significant divide between African states. While Namibia and The Gambia have said they too would withdraw, far more states have openly expressed support for the ICC. This includes public statements from leaders in Côte d’Ivoire, Nigeria, Senegal, Sierra Leone, Malawi, Tanzania, Zambia, and Botswana. Notably, some of these states have regularly voiced their support for the Court but it seems, in the wake of the fear of a full-blown ICC-Exit, the media are paying almost as much attention to ICC supporters as they are to the dramatic throes of ICC opponents.
It was always evident that a significant number of African states would remain members of the ICC. But the vocal support for the ICC matters beyond the mere fact that it is openly expressed approval for the Court from African leaders. Anti-ICC African states have relied on the silence of most African states when it comes to the continent’s relationship with the Court. This manifested itself in remarkable ways. On some occasions, not much more than a handful of government representatives would draft a resolution calling for an Africa-wide withdrawal from the ICC and then determine whether it would be adopted by the African Union. To the frustration of the ICC officials and the Court’s champions, pro-ICC states often just let it slide. For them, making a fuss wasn’t worth it — and it’s hard to blame them; the anti-ICC resolutions weren’t binding and didn’t affect their political interests. Instead, they could just relay their support for the ICC privately to the Court. But observers were jumped on the headlines that “Africa” was pulling out of the ICC and that the Court was biased against “Africa”. Many observers would subsequently lap up and amplify the rhetoric of particularly strong anti-ICC leaders like Uganda’s President Yoweri Museveni or Kenya’s Uhuru Kenyatta.
What is more clear now than ever is that there is little-to-no pan-African consensus on the ICC and its role on the continent. The feigned consensus within various AU resolutions has been exposed. If the anti-ICC push can be described as a “movement”, it is also clear that this movement was undermined by South Africa’s decision to withdraw from the Court. While South Africa had long planned to withdraw from the ICC, Burundi’s decision to do likewise rushed the South African government into being the first to do so. Any Africa-wide, collective efforts against the ICC could suffer as a result.
Not only have the states listed above come out in support of the ICC, but South African officials have tended to avoid citing the ICC’s alleged bias” against Africa in explaining their decision to withdraw from the Court. Instead, they have reiterated their view that their obligations to head of state immunity and conflict resolution clash with their obligations to the Rome Statute of the ICC. Meanwhile, with so few allies on the continent and its ongoing tensions with the AU, Burundi’s decision likely does even more harm to the anti-ICC movement. The question now is: what, if anything, binds anti-ICC sentiment on the continent? The AU’s next summit in January will be critical in answering this question.
Of course, the withdrawal of any state from the ICC is bad news for the Court. None of this should read as an endorsement or excuse of the ICC’s response to the legitimate criticisms of its work. But the decision of Burundi and South Africa to ditch the ICC has likely done more harm than good to the anti-ICC movement in Africa.
Lead image: President Jacob Zuma, President Goodluck Jonathan, President Salva Kirr, President Joseph Kabila and other African heads of states at the inauguration ceremony of Uhuru Kenyatta (Photo: GovernmentZA/Flickr)
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.