Expert zooms in on African withdrawal from ICC

 

The debate around African nations withdrawing from the International Criminal Court (ICC) has sparked a massive divide across the continent. This has created four schools of thought, with one group vying to delink from the world judicial body and others determined to remain signatories to the Rome Statute. Another section includes Africa countries that are monitoring the unfolding events to inform their decisions, while the last group are composed of those who are seemingly apathetic to the whole debate that has engulfed African polities.

New Era’s chief political reporter Elvis Muraranganda engaged political analyst Neuma Grobbelaar, the director of research at the South African-based South African Institute of International Affairs.

What does the withdrawal of African nations from the ICC mean to the African continent and globally?
This is clearly a regressive step in the rights-based discourse in Africa and globally. We should not forget that it was the considered support of Africa that made the establishment of the ICC possible. This step was informed by the terrible humanitarian devastation that was wrought in Rwanda in the early 1990s, but also a sense globally that enough was enough, in other words, that the international community cannot simply stand by when gross human rights abuses were taking place, as was also the case following the break-up of the former Yugoslavia. It was a unique point in human history, which coincided with the call that we all have a responsibility to act and especially to act against those who act with impunity.

In light of the recent withdrawal of three African nations, namely South Africa, Burundi and Gambia, from the ICC, do you foresee a mass exodus of other African nations? Kindly qualify your answer.

It is difficult at this point to predict a mass exodus based on the South African, Burundian and Gambian decision, and indeed some African states have called on South Africa and the other member states to reconsider their decision, or have gone as far as to severely criticise the decision. It is also useful to note the stance taken at the UN on this issue by, amongst others, Nigeria and Senegal. There is also an outcry in Africa’s human rights and legal community. Indeed, in South Africa itself there is an outcry about the government’s announcement and there is still a long road ahead around the procedural legality of the decision without sufficient parliamentary consultation. More broadly speaking, there is not necessarily unanimity in the African group on the ICC, although it could be argued that there might be broad agreement that there are certain shortcomings that should be addressed in the ICC. However, these should rather be addressed within the ICC fold itself. An important milestones to watch is the next AU Summit in 2017, where this matter will definitely come up, but it should also be noted that the Kenyan-led AU initiative in January and July this year for a mass exodus of African states from the ICC did not succeed.

Senegal, Nigeria and Tanzania have pledged support for the ICC and are clear that they will remain attached to the ICC, what is your take on that?
As per the point above, there still remains strong support among leading nations on the continent for the ICC and its mandate. We need to recognise that the ICC is the outcome not only of Western support, but very specifically came about because of the strong conviction in Africa at the time that we needed to chart a new path.
Global and regional initiatives, such as the ‘responsibility to protect doctrine’, which also informed the step away from the principle of ’absolute sovereignty’ to the principle of non-indifference under the African Union; the political winds of change that swept across the continent in the wake of the end of the Cold War and South Africa’s liberation; even the establishment of the African Peer Review Mechanism are all emblems of the Zeitgeist of this time.
Moving from a point of changing values and principles to the establishment of institutions that shape the rules of acceptable behaviour, but that also determine the sanctions for unacceptable behaviour, is a long and arduous process. It is very difficult to simply walk away when so many lives have been lost because some leaders (of whom some are nothing more than warlords) have acted with impunity. African states and societies need to consider the historical responsibility to right the wrongs in our region.

This is not about a Western-led, colonial or imperial agenda. This is about taking a hard and honest look at ourselves and asking of those that lead us to represent and lead us in a very specific manner and for them to be held accountable when they do not. Some of Africa’s current leaders have themselves borne the brunt of prosecution, or have lived through periods of huge instability, and hence are very aware (as are our human rights institutions) of the severity of the abandonment of the ICC.”

Kenya, whose President Uhuru Kenyatta was indicted by the ICC, remains undecided at this stage, what do you think could be the reason for so much indifference?

It is not clear whether one should describe Kenya’s approach as one of indifference. Indeed there is a Bill in front of the Kenyan parliament seeking the withdrawal of Kenya from the ICC. As noted earlier, Kenya also advocated for the mass withdrawal of AU members at the AU summits in January and July this year, unless there is reform of the ICC and the way it intervenes in Africa.

It seems that for the moment the Kenyan government is taking a wait-and-see approach, perhaps hoping that there is now enough momentum building for a mass AU withdrawal in January 2017, where it does not necessarily have to seek to push the Bill through its own parliament, where it is bound to receive some opposition (with the associated reputational damage), but either way it would have to push it through parliament for it to take effect.

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