The ICC Must Dispense Justice More Equitably Or Face an Exodus of African Countries

South Africa, Burundi and The Gambia have all left the international court in recent days after accusing it of a bias against Africa. The African Union is also calling for more countries to exit the court.

The most accessed book in 2015 at the United Nations headquarters library was the Immunity of Heads of State and State Officials for International Crimes. The reason the book was popular, it has been argued, was because state representatives wished to know the nuances of the relevant law, given the possibility of their officials being taken to the International Criminal Court (ICC) for prosecution for crimes. South Africa’s recent decision to withdraw from the ICC, as well as The Gambia and Burundi‘s decision to leave raise significant questions on the idea of international justice in general and the ICC in particular.

Although South Africa’s decision to withdraw comes as a first, there has been a discussion among the African Union (AU) member states for some time about withdrawing from the court. There was even a proposal within the AU that sought a mass withdrawal of its member states from the ICC. Thus, despite the fact that only three states, out of the 124 states who are parties to the Rome Statute, have clearly expressed their withdrawal, this development has been taken seriously by those who are concerned with the prosecutions of international crimes. The president of the assembly of states who are party to the Rome Statute of the ICC stated: “Although withdrawing from a treaty is a sovereign act, I regret these decisions and invite South Africa and Burundi to reconsider their positions. I urge them to work together with other states in the fight against impunity, which often causes massive violations of human rights”.

It is certainly a setback to the idea of international criminal justice, which became concretised with the establishment of the permanent international criminal court. South Africa’s stated reason for its withdrawal is, as its minister had informed, that they “wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”. This situation arose particularly in the context of the president of Sudan, Omar Al-Bashir, against whom an arrest warrant issued by the ICC is pending. Al-Bashir’s visited South Africa to attend the African Union summit in 2015. South Africa was expected, as an obligation, to arrest and surrender him to the ICC, which it did not do. He was allowed to leave South Africa, despite an order by the high court in Pretoria to prevent him from leaving. The Supreme Court of Appeal dismissed the state’s appeal against the high court order. An appeal against the decision of the Supreme Court of Appeal is pending before the constitutional court.

Though this seems to be the immediate legal reason for the South Africa’s withdrawal from the ICC, there are certain fundamental challenges for the court’s functioning that go beyond case specific issues.

Gap between criminal responsibility and causes of criminality

The inherent character of criminal prosecutions is that they confine themselves to actual acts of crime and only in a few circumstances do they go into the reasons behind the criminal acts for establishing the guilt. This inherent character of the criminal justice system has certain positive consequences as it confines criminality to the actual perpetrators only. However, extending this framework to international crimes seems to pose certain challenges to the understanding and application of the idea of international criminal justice.

The Rome Statute provides the ICC with jurisdiction over certain graves crimes (war crimes, crimes against humanity and genocide) and is mainly intended to deal with bigger players in the perpetration of crimes. However, by their nature, most of the international crimes take place not as a result of individual planning and commission alone but with an involvement of large scale planning and participation in general. This large-scale nature of international crimes tends to be the consequence of a gross violation of human rights, mostly by the state machinery but also sometimes by non-state actors. The reasons for these crimes are often rooted in historical and political injustices. Thus the argument that Africa is being targeted by the ICC, as suggested by Burundi and The Gambia, is answered by saying that it is happening because the conflicts are occurring and crimes are taking place there. This arguably simplistic answer emanates from the fact that international crimes are delinked from the larger reasons and attributed to individuals alone. These individuals invariably happen to be the heads of state and government and other higher officials or heads of non-state actor groups.

While it is a fact that these individuals are allegedly at the forefront of the commission of these grave crimes, they are being seen as victims of the idea of international criminal justice at the instance of the western and developed countries. This may seem like diverting the attention from grave crimes, but what remains to be underlined is that the idea of international justice needs to be comprehensive to address the causes of conflicts along with addressing the consequences of conflicts i.e., international crimes. While discussing the referral of the Darfur situation to the ICC,in his book Saviours and Survivors: Darfur, Politics and the War on Terror, Mahmood Mamdani argues:

“….in the prosecutor’s mono-causal and one-dimensional version of history, colonialism turns into benign “tradition” and any attempt to reform the colonial legacy of tribal homelands is seen as a dress rehearsal building up to genocide…, just as any part of the historical record that suggests that the violence in Darfur has multiple causes… and thus multiple responsibilities is expunged from the record. Having assumed a single cause of excess deaths in Darfur-violence-the application goes on to ascribe responsibility to single source: what happened in Darfur is a consequence of Bashir’s will. This is demonisation masquerading as justice.”

Structurally biased ICC 

Another major factor of the ICC that invites criticism is that it is structurally biased. Along with other issues, the power of the UN Security Council to refer and defer a matter places certain states at an advantageous position. Paradoxically the UNSC has the power to refer a matter against a state that is not a party to the Rome Statute. This is what has happened in the case of Sudan and Libya. This goes against the notion of ‘consent of a state’, which is a fundamental tenet of treaty law. This structural bias reinforces the feeling that not only the emphasis on individual criminal responsibility overlooks the causes of international crimes, even the narrowly construed prosecution of international crimes is subjected to power politics. The net result of these factors is that the ICC ended up taking cases in African states, while ignoring the fact that similar grave situations exist in other parts of the world. This is where the withdrawals of South Africa, The Gambia and Burundi need to be contextualised.

For those concerned with the withdrawals, the ICC should strive, at the very least, to focus equally on all situations where serious allegations of international crimes are made. That itself would create necessary public opinion at the international level for states to remain with the ICC. In fact, this is the same public opinion and pressure that forced states to create the permanent ICC. This should happen along with expanding the scope of intentional justice by addressing the causes of the conflicts too. Otherwise, international criminal justice would be seen as only pursuing partial justice.

Srinivas Burra is an assistant professor, Faculty of Legal Studies, South Asian University, New Delhi.