Last month, South Africa announced its withdrawal from the International Criminal Court. The decision came only days after Burundi announced that it would also leave the court. This brings the number of African countries that have either left or initiated the process of leaving the ICC to five, raising concerns regarding the ability of the international justice organization to effectively prevent state-sponsored violence. South Africa’s official reason for withdrawal was that the Rome Statute, which established the ICC in 2002, affected cordial diplomatic relations in the region.
Yet the real trigger of the change was a case in which a civil society organization had taken the government to court for refusing to arrest President Omar al-Bashir of Sudan while on a visit to South Africa, as is required by the Rome Statute. Al-Bashir is wanted by the ICC for alleged war crimes in Darfur, where more than 300,000 people have died since 2003.
So why would a number of African countries reject a court designed to deter crimes against humanity? The simple answer is that a lot has changed since 2002.
South Africa’s formal withdrawal from the ICC has reignited debate over whether the Hague-based court unfairly targets African nationals. Since its formation in 2002, the court has initiated six cases in the Central African Republic, Ivory Coast, the Democratic Republic of Congo, Kenya, Mali and Sudan, all of which have involved African nationals.
Two sitting African presidents, al-Bashir and Uhuru Kenyatta of Kenya, have been charged by the ICC for crimes against humanity. Former President of the Ivory Coast Laurent Gbagbo is also currently on trial at court. Many of the anti-ICC voices in the region view these cases as a sign of disrespect at best, and neo-colonialism by a European court at worst.
Before the charges were dropped against Kenyatta, the government of Kenya urged members of the African Union to leave the ICC in defense of African sovereignty. Ultimately this did not happen, not least because most of the 34 African countries are heavily dependent on Western aid that would have dried up if they left the court.
Much of the anti-ICC rhetoric ignores the fact that the court does not investigate cases of its own volition. The court either has to be invited by the host country or receive directions from the United Nations Security Council. Of the six African cases, only in Sudan’s case did the ICC initiate investigations without invitation by the host country.
For the majority of its interventions in Africa, the ICC has stepped in where local judicial processes failed to address alleged cases of crimes against humanity. It is precisely for this reason that a mass withdrawal by African states would be worrisome — it would take away a potential deterrent against elite-orchestrated mass violence.
However, these concerns are likely to be drowned out by politics. In 2002, many African states signed the Rome Statute from a position of economic and political weakness. Now, more African countries are less reliant on Western aid, and it is not lost on the ICC’s critics that many important countries in the world — including the United States, India, China, Russia and Israel — are not members of the court. These factors, coupled with an aversion to domestic interference by international organizations, suggest that further ICC interventions in Africa are likely to be met by even stronger resistance by the region’s states.
Ultimately, the international community will soon have to confront the reality that it is impossible to depoliticize international justice, and that international institutions, like the ICC, are a poor substitute for strong domestic law enforcement and judicial institutions.
Ken Opalo is an Assistant Professor in School of Foreign Service. His research focuses on the political economy of development in Africa.