SA, Burundi and Gambia spark ICC exodus

By Ranga Mataire and Timo Shihepo

THE International Criminal Court (ICC) is facing a watershed moment after three African countries announced they were withdrawing their signatures from a treaty binding them to the court, in a protest move over what they see as racial targeting of Africans.

Last week, Burundi announced its intention to leave the court, and South Africa did the same just days later. Concerns that this could be the beginning of an African exodus from the court were confirmed on Tuesday when the Gambia also announced its exit.

International relations experts predict that Kenya, Namibia and Uganda could be among the next countries to leave the court.

Prior to Burundi’s exit, no country had previously withdrawn from the ICC.

For years, many African nations have claimed that the Hague-based tribunal, which was established in 2002, is biased against the continent’s leaders. Nine of its 10 current investigations involve African countries.

The United Nations has called on South Africa to reconsider its decision to withdraw from the ICC. UN Secretary General Ban Ki-moon issued a statement just hours before the Gambia dropped the third bombshell, saying he regretted the South African government’s decision to withdraw from the Rome Statute of the ICC.

He hoped that the country can make a U-turn before its withdrawal takes effect, which is a year after the UN Secretary General has been notified.

Ban said he recalled the significant role South Africa played in the establishment of the ICC, and that the country was one of the first signatories to the Rome Statue. He emphasised the ICC’s role in efforts to end impunity and helping deter future atrocities across the globe.

Ban hoped that “states that may have concerns regarding the functioning of the Court seek to resolve these matters in the Assembly of States Parties to the Rome Statute.”

The South African government said it found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC.

In June 2015, South Africa was forced to defy a court which ruled that it must arrest Sudanese President Omar Al-Bashir who was in the country for an Africa Union summit. Al-Bashir has an international arrest warrant issued by the ICC, enjoining all ICC member countries to arrest him if he comes into their territories.

Al-Bashir was allowed to leave the country and avoided arrest while the South African government appealed the court ruling.

Maite Nkoana-Mashabane, South Africa’s Minister of International Relations and Cooperation, signed the Instrument of Withdrawal on October 19, following a Cabinet decision.

“South Africa has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court,” Nkoana-Mashabane said when announcing the withdrawal.

South Africa’s Justice Minister Michael Masutha said the government had to make changes after the Supreme Court of Appeal ruled in the Al-Bashir case that the Implementation of the Rome Statute of the International Criminal Court Act was in conflict with the Diplomatic Immunities and Privileges Act.

Gambia’s Information Minister Sheriff Bojang announced on Tuesday that they were withdrawing from the ICC because the court had been used “for the persecution of Africans and especially their leaders” while ignoring crimes committed by the West.

Bojang singled out former British Prime Minister Tony Blair’s case when the ICC decided not to charge him over his involvement in the Iraqi war.

“The ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans,” Bojang said.

“There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted.”

The three countries’ decision to withdraw from the ICC was celebrated by other African countries who share the same sentiment that the ICC has been targeting African leaders.

One such country is Zimbabwe, whose President, Robert Mugabe, was one of the first African leaders to call on the continent to boycott such institutions.

Zimbabwe never ratified the Rome Statute and is thus not subject to the ICC’s jurisdiction.

Speaking in April, Mugabe said Africa should establish its own ICC to help seek justice for war crimes and crimes against humanity committed by the West, especially during the colonial times.

“They committed crimes, colonial crimes galore – the slaughter of our people and all that imprisonment. I have a case. Why was I imprisoned for 11 years? We forgave them, but perhaps we have not done ourselves justice. They set up the ICC; we should set our own ICC to try Europeans, to try George Bush and Tony Blair,” Mugabe said.

Zimbabwe’s Foreign Affairs Permanent Secretary Joey Bimha told The Southern Times on Wednesday that they were happy to see African countries quitting the ICC.

“As you’re aware, Zimbabwe didn’t ratify the Rome Statutes that gave rise to the ICC. It was our considered opinion that this court seems to have been created sorely for African leaders. We’re quite encouraged by the move taken by South Africa, Burundi and Gambia. I’m sure there are many other African countries reconsidering their membership,” he said.

African countries have discussed the establishment of an African Court of Justice and Human Rights. Kenyan President Uhuru Kenyatta, who was once charged by the ICC before the case collapsed due to lack of evidence, is one of the advocates of the continental court, which he said was fundamental in cementing the idea of finding African solutions to African problems.

Namibia has declined to confirm whether a pull-out is imminent. Prime Minister Saara Kuugongelwa-Amadhila said the question of whether Namibia should also exit the ICC is not an urgent one.

“It’s a question that needs to be answered with time. Where Namibia acceded to an international protocol, there are ratifications approved by parliament,” she told The Southern Times.

Namibia can only cease to be a member of the ICC following the same process in place, because the moment Namibia ratifies any international law it becomes part of the body of law in Namibia, she said.

“We cannot, as the executive, decide that this law which is applicable to government no longer applies as of today,” she said, adding that whatever decision is to be taken by Namibia regarding the ICC will be taken by the established institutions, like the National Assembly.

Odd One Out

Botswana said it had not changed its position on remaining in the ICC. Foreign Affairs Minister Pelonomi Venson-Moitoi told The Southern Times: “Botswana is still a member of the ICC and would not be influenced or intimated by other countries that are leaving the Court.”

She said while Botswana respects the sovereign right of any country to become a party to, or to withdraw from any international instrument, Botswana nonetheless regrets that South Africa reached this decision. “Botswana remains convinced that the Assembly of States Parties (ASP) to the Rome Statute is the most appropriate platform for States Parties to address any concerns they may have regarding the implementation of the Statute,” she said.

Botswana said it is convinced that as the only permanent international criminal tribunal, the ICC is an important and unique institution in the international criminal justice system.

November 2016
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