Stephen W. Smith
The South African president, Jacob Zuma, has notified the United Nations of his country’s decision to leave the International Criminal Court in The Hague and is encouraging other African countries to follow suit. No one should be surprised. African doubts about the ICC have been growing ever since a sitting president, Sudan’s Omar al-Bashir, was indicted by the court for war crimes and crimes against humanity. That was in 2009: a year later, the charge of genocide was added. Burundi, the Gambia and now South Africa have decided to withdraw from an institution which African support and the prevalence of international crimes in Africa – war crimes, crimes against humanity, even genocide – helped bring into existence.
That Burundi walked out – it was the first to do so – wasn’t much of a surprise: this small East African state, which neighbours Rwanda, has been under investigation since its president, Pierre Nkurunziza, imposed a reign of terror in order to secure a third term in office, which he was constitutionally barred from seeking. The Gambia, a microstate of two million inhabitants bounded by Senegal, had even less international prestige than Burundi, at least until its strong man since 1994 seemed to concede a surprise electoral defeat on 2 December. Ex-President Yahya Jammeh, who once claimed a ‘billion year’ mandate to rule, had the ICC denounced on state television as the ‘International Caucasian Court’. His case is weak. Several Africans hold top positions at the ICC; among them, the chief prosecutor, Fatou Bensouda, a Gambian who served as Yahya Jammeh’s legal adviser before she became his minister of justice.
South Africa’s decision, which will become effective after a one-year delay, is more serious. On paper its constitution is one of the best; South Africa is also the continent’s do-or-die liberal-democratic model. Last year Bashir’s attendance at an African Union summit in Johannesburg was cut short by a local court’s decision to have him arrested. The high court in Pretoria then ruled that he could not leave the country until an application for an arrest warrant had been heard. Bashir repaired to Sudan in short order. South Africa’s justice minister reasoned that ICC membership was at odds with South Africa’s obligation to the African Union to grant immunity to the continent’s heads of state. That was a year and a half ago. Why has Zuma waited until now to announce South Africa’s departure from the ICC?
A look behind the scenes partially explains the delay. After the Bashir episode, Zuma’s informal ‘adviser for francophone Africa’, Philippe Solomon, a French Israeli based in London, began lobbying the Security Council for a suspension of Bashir’s prosecution on the basis of a provision in Article 16 of the Rome Statute, the founding document of the ICC, which allows the UN Security Council to defer a prosecution, or even an investigation. Solomon tried to approach the ICC’s chief prosecutor via her husband, Phillip Bensouda, a Moroccan-Gambian businessman, but failed. Zuma made his announcement about the ICC after his return from a trip to Kenya, which until then had spearheaded Africa’s diplomatic offensive against the court. Did he plan the move with his Kenyan counterpart, Uhuru Kenyatta, or did he aim to pre-empt a Kenyan initiative in order to reclaim South Africa’s Pan-African leadership? Either way, he acted without consulting his country’s parliament, which voted for membership in 2002. His decision is now before South Africa’s constitutional court.
Zuma will eventually have his way. It’s anyone’s guess how many other African states now want to resile from the Rome Statute. In February, the African Union backed a proposal by Kenyatta ‘to develop a road map for the withdrawal of African nations’; and as early as 2013, the Kenyan parliament voted to withdraw. The threat was enough: in December 2014, the ICC dropped its charges against Kenyatta, indicted for his alleged role in the electoral violence of 2007/2008, which cost the lives of more than a thousand Kenyans, and displaced hundreds of thousands from their homes. The ICC folded amid claims by the prosecution of interference with witnesses and obstruction of justice by the Kenyan authorities.
Africa’s suspicions about the ICC are laid out by the French journalist Stéphanie Maupas in her book Le Joker des puissants, published at the beginning of the year. She denounces a ‘one-eyed justice that observes with cautious cowardice the crimes of distressed peoples while disregarding those of domineering nations’. Inasmuch as the UN Security Council can approve cases for the ICC, and has the power to defer prosecutions, the court is both compromised and hobbled. Three of the five permanent members – the US, Russia and China – are not states parties to the statute, and their citizens are therefore immune from prosecution. If one of the permanent members uses its veto, nationals from states that have ratified the statute cannot be prosecuted either. As a result, the attempt in 2014 by 65 nations to refer Syria was blocked by Russia, which signed the statute but failed to ratify, and China, a non-signatory state. The ICC’s preliminary investigations into alleged war crimes committed by the US army and the CIA in Afghanistan, and alleged crimes committed in Gaza and the Occupied Territories by Israel – like the US and Russia, a signatory that failed to ratify – are highly unlikely to get past a US objection.
Africa has responded with no more alacrity or even-handedness than the rest of the world to its heavy caseload of egregious crimes. The continent’s non-permanent members on the Security Council did not object to the referral of Sudan or Libya; as for the other criminal investigations carried out by the court since it started functioning in 2002, six were initiated at the request of African states themselves, and only one – Kenya – was undertaken at the discretion of the ICC’s first chief prosecutor, Luis Moreno Ocampo. That makes it hard to argue that the ICC is gunning for Africa. True, we’ve had to wait 14 years for a non-African investigation to be launched: in Georgia, in January; ten preliminary examinations now underway include Afghanistan, Colombia and Palestine. But Africa has offered plenty of low-hanging fruit to the slow and circumspect pickers at the ICC, who understand the limits of their reach.
African regimes have made justice the handmaiden of politics and can play the game, in many cases, even better than the world powers. The Rwandan militia leader Bosco Ntaganda, known as the Terminator and wanted for his activities near a major goldmine in eastern Congo, was finally handed over for a cloak-and-dagger arrest by the ICC in Kigali in 2013. No voices in Africa could be heard protesting that Paul Kagame’s regime had used Ntaganda for more than a decade as a privateer and, according to UN investigations, had covered 80 per cent of Rwanda’s defence budget in the first few years of power by extracting hundreds of millions of dollars from illegal mining operations in the eastern Congo through a front office known as the Congo Bureau.
The ICC has only made four convictions since it began operating, and all are of Africans. One is the repentant Ahmad al-Faqi al-Mahdi, a Malian Tuareg, sent down in September for destruction of world heritage sites in Timbuktu. The other three are the Congolese rebels Thomas Lubanga Dyilo and Germain Katanga, and the DRC’s former vice-president Jean-Pierre Bemba, the last on account of his ‘command responsibility’ for his fighters, who wreaked havoc in the Central African Republic. There have been millions of victims in the eastern Congo since 1997. Has ‘international criminal justice’ been served in Congo? Or in Ivory Coast, where five years after the end of the civil war, the ‘principle of complementarity’ between national and international jurisdictions has turned into a parody? The former president Laurent Gbagbo sits in the dock in The Hague, while his wife – accused of complicity – is tried by an Ivorian court, and none of the former rebel leaders has yet been arraigned for the atrocities they committed in the north and during their final march on the capital.
The ICC, with a modest budget of roughly $140 million per annum, has been a grandiose failure. Staffed by 800 people, it has issued nine summonses and 29 arrest warrants in 14 years. It appears to Africans, inter alia, as unprincipled and feckless. But so do African heads of state, who insisted on immunity from prosecution in recent deliberations over a proposed African Court on Human and People’s Rights, which has been years in the making as a result of their unwillingness to fund it. A self-interested and outdated view of sovereignty is still the best defence for African presidents, veiling their own accountability and overriding the fundamental rights of their citizens.