{The African Union has been persuading its member nations to withdraw from the ICC over the court’s alleged institutional bias against Africa and its leaders.}

The recent decision of South Africa, Burundi and The Gambia to withdraw from the International Criminal Court (ICC) has evoked mixed responses from various quarters and opened up important questions regarding the future of the ICC, especially with regards the African continent. It is important to understand why these countries have chosen to leave the court.

{{South Africa}}

As a founding member of the court with a rich legacy of supporting international criminal justice measures under the leadership Nelson Mandela, South Africa’s decision to withdraw from the ICC was a first in the history of the court. South Africa justified its decision to quit the Rome Statute was due to the apparent conflict with its obligations to the African Union to grant immunity to serving heads of states.

It must be remembered that South Africa hosted the AU summit in June 2015 which saw the participation of ICC inductee and Sudanese President Omar al-Bashir.

With an ICC warrant on his head, Bashir was supposed to be arrested in South Africa and handed over to The Hague for a trial on three charges, all of them grave – genocide, war crimes and crimes against humanity. South Africa’s inability to do so resulted in international condemnation and, more crucially, a domestic judicial verdict that the government violated its international and domestic legal obligations in not arresting the ICC fugitive. Coupled with criticism from human rights organisations for its lackadaisical dealing with the matter, the Jacob Zuma government is facing a host of domestic governance issues and felt it best to withdraw from the ICC. The withdrawal is likely to face a challenge on grounds of constitutionality as the same was executed without parliamentary approval or a broad public debate within the country. Surprisingly enough official statements remain silent on the ‘bias against Africa’ allegation and one should thus assume that South Africa’s withdrawal is not presupposed on that ground.

{{Burundi}}

In sharp contrast to South Africa, Burundi officially holds the ICC as a ‘Western tool to target African governments’. This allegation of institutional political bias is not a new one but has gained ground in recent times with nine out of ten situations being currently investigated by the office of the prosecutor being in Africa (Mali, Cote D’ Ivoire, Central African Republic, Libya, Kenya, Sudan, Uganda, Democratic Republic of Congo). Georgia is the only country outside Africa facing such an investigation. The ICC’s inability to try heads of state/leaders of any of the P5 countries or even launch preliminary investigations against them for acts of impunity has bolstered the notion of substantial unfairness and geopolitical prejudice in the debate surrounding individual accountability. Interestingly Fatou Bensouda, ICC chief prosecutor, announced in April 2016, the ICC’s plan of opening a preliminary investigation into acts of killing, imprisonment, torture, rape and other forms of sexual violence in Burundi. Being a nation on the verge of an ICC investigation that would have invariably found the top political leadership, including controversial President Pierre Nkrunziza, guilty of widespread violence against political opponents, Burundi’s withdrawal should be seen through the prism of helpless African victims of human rights violations and domestic political considerations as well.

{{The Gambia}}

The Gambia announced on October 25 that it would withdraw from the ICC, accusing the court of “persecution and humiliation of people of colour, especially Africans”. Significantly, Fatou Bensouda, the current chief prosecutor of the ICC is a native of The Gambia. It should be apt to mention that The Gambia’s unsuccessful long drawn efforts to employ the ICC to try and punish the European Union for the deaths of thousands of African migrants trying to reach its shores, would have contributed to its decision to leave in no small measure. In fact, the non-prosecution of Tony Blair for his role in the Iraq war was specifically pointed out as an illustration of institutional prejudice on the part of the Hague-based tribunal. Since 1994, The Gambia has been under the rule of President Yahya Jammeh, who exercises full control over the military and those critical of government policies have been at the receiving end of state excesses. With its questionable human rights track record, including the crackdown on political opponents, The Gambia sooner than later faced the prospect of emerging as a contender for an ICC investigation.

{{Role of the African Union (AU)}}

Interestingly, the AU has been at the forefront of persuading its member nations to withdraw from the ICC on grounds of the latter’s alleged institutional bias against Africa and African leaders. In January 2016, the AU decided to mandate its open-ended committee to the ICC for the purposes of developing a “comprehensive strategy” which included a withdrawal from the ICC. In pursuance of the same, three preconditions were stipulated to prevent a withdrawal which included a demand that serving heads of states including senior state officials should be granted immunity from prosecution.

These moves should be viewed in light of Article 4 of the constitutive act of the AU which expressly and unequivocally rejects acts of impunity. The AU has also identified ‘justice’ as one of its “shared values” to be preserved and protected at all times. Also, 2016 has been identified as the “African year of human rights with particular focus on the rights of women”. Any propagation to withdraw from the only permanent international institution established to fight impunity should closely reflect the broad ideological parallels running between the two institutions. The opposition to ICC in the African continent is by no means universal. During the July AU summit, several African ICC members – Côte d’Ivoire, Nigeria, Senegal, and Tunisia – initiated a significant step in joining Botswana to expressly oppose the AU call for withdrawal from the Rome Statute. In addition, Sierra Leone, Gabon, Central African Republic, Tanzania and Mali have at various points of time expressly or impliedly supported the ICC. In fact, Gabon invited the ICC to conduct a preliminary investigation into election violence in the last week of September.

While efforts have been made to portray the withdrawal of South Africa, Burundi and The Gambia from the ICC as a response to ingrained geopolitical prejudice against the African continent, a closer examination reveals that domestic considerations, including the possibility of imminent prosecution, play a key role in ICC pull-outs. The African continent is not a monolithic en tity with many different nations appreciating the role of the ICC as a defender and a safeguard in the fight against impunity. Also, closer coordination with the ICC is viewed as a desirable value to be pursued. However, the perception of a bias against Africa is a strong one with robust justifications as well and the ball is in the ICC’s court to weed out any trace of geo-institutional prejudice which would be fatal in the struggle against global impunity.

Abraham Joseph is an assistant professor in the Ansal School of Law, Ansal University, Gurgaon and is also pursuing Ph.D. from NLSIU, Bangalore in the area of International Criminal Law. Views expressed are personal.

A general view shows the opening session of Heads of States and Government of the African Union on the case of African relationship with the International Criminal Court (ICC) in Ethiopia’s capital Addis Ababa, October 11, 2013.