03 November 2016
The International Criminal Court
Or the International Caucasian Court?
by Neil Tidmarsh
“An International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” So Gambia’s Information Minister, Sheriff Bojang, described the International Criminal Court this week when announcing his country’s withdrawal from the ICC’s jurisdiction.
Gambia is the third African country to abandon the ICC in less than a fortnight; Burundi and then South Africa announced their departure last week. Burundi also complained that the ICC was unfairly concentrating on Africa and Africans while ignoring crimes committed elsewhere, particularly in the West, calling the ICC “a Western tool to target African governments”. The country’s Vice-President Gaston Sindimwo accused the court of violating the rights of Africans, and gave the court’s decision not to prosecute Tony Blair for war crimes as an example of double standards. The African Union itself is considering calling for a mass withdrawal from the ICC. “Elsewhere in the world, many things happen, many flagrant violation of human rights, but nobody cares” said the AU chairman, Idris Deby, president of Chad, at an AU summit earlier this year when it backed a Kenyan proposal calling for withdrawal from the ICC.
Such claims and complaints deserve serious attention. Of the ICC’s ten cases, nine of them involve African countries (Kenya, Ivory Coast, Libya, Sudan, Democratic Republic of Congo, Central African Republic, Uganda and Mali), and only one of them a non-African country (Georgia). Of the 39 individuals indicted so far, most have been African. The USA, Russia and China have not ratified membership of the ICC, so the court has no power over the citizens of those countries without the approval of the UN Security Council; those three countries are all members of the Security Council and so can veto any such approval, and at least two of them have indeed done so.
Nevertheless, in the immediate aftermath of the departure of Burundi, South Africa and Gambia, it’s worth considering why these three particular countries have been the first in what many fear might become a continental rush for the exit.
Burundi’s President Pierre Nkrunziza is a controversial figure who has been in power for ten years. Last year, he announced his intention to run for a legally-dubious third term; two months of violently-repressed protests followed, in which 100 people died, culminating in an election boycotted by the opposition and in which the turn-out was a mere 30%. The ICC’s chief prosecutor opened preliminary investigations into abuses in Burundi (including allegations of murder, abduction, torture and rape) just before the country announced its departure from the court’s jurisdiction.
The South African government put itself on a collision course with the ICC last year when it failed to arrest Sudan’s President Omar al-Bashir when he made an official visit to attend an AU summit. The ICC had issued an arrest warrant against Bashir on three serious charges – genocide, war crimes and crimes against humanity – and as both South Africa and Sudan are members of the ICC, Bashir should have been arrested the moment he set foot on South African soil, and sent to the Hague for trial. The failure of Zuma’s government to fulfil this legal obligation earned international condemnation abroad and domestic judicial condemnation at home.
Gambia’s President Yahya Jammeh took power in 1995 in a military coup d’etat, and is on his fourth term in office. His regime has been criticised for restricting press freedom and for homophobia, and has been accused of human rights abuses including abductions, disappearances, and the killing of students and immigrants. The Gambia’s rejection of the ICC might have something to do with its unsuccessful attempts to get the ICC to punish the EU for the deaths of thousands of African migrants trying to reach Europe; but it’s more likely to have been prompted by the feeling – real or imagined – that the ICC is breathing down its neck.
At the same time, it should also be pointed out that Africa as a continent supports the ICC more than any other. 32 out of the 124 countries which have signed up to the ICC are African (compared to only one Middle Eastern country – Jordan). South Africa was a founding member of the court, and Nelson Mandela was one of its biggest champions. The Elders – a respected and influential group of elder statesmen including Desmond Tutu – remain champions. Many African countries – including Senegal, Gabon, Cote d’Ivoire, Nigeria, Tunisia, Botswana, Central African Republic, Tanzania and Mali – are all outspoken supporters of the ICC, with a number of them opposing the AU’s calls for withdrawal. The ICC’s chief prosecutor, Fatou Bensouda – who opened those investigations into accusations of abuses in Burundi – is herself from Gambia. The African Centre for Justice and Peace Studies condemned South Africa’s withdrawal as “a devastating blow for victims of international crimes across Africa”. The withdrawal is likely to face a legal challenge from within South Africa, as it was undertaken without parliamentary approval.
But even among the ICC’s African supporters, there are worries that its African critics have a valid point.
The ICC was founded in 2002 as a global tribunal to try cases of genocide, war crimes and crimes against humanity. Recently it has made ground-breaking, historic convictions against rape as a weapon of war and against the destruction of cultural heritage. Its work is undeniable essential and invaluable; but it must do more to prove that it operates without prejudice if the defection of more African countries – a continent which has shown much support in the past, and whose support it needs more than ever – is to be prevented.
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