withdrawal of its member states from the International Criminal Court (ICC) at its annual heads of state summit in Addis Ababa in January, it was a call that reverberated across the globe. Leading the withdrawal are South Africa, the Gambia and Burundi, although the Gambia has said it plans to rejoin.
The ICC was set up to prosecute and bring to justice people responsible for genocide, crimes against humanity and war crimes. The court came into force in 2002, set up by the Rome Statute and is ratified by 124 countries. Of these 34 are from Africa. Most notable for their absence are China, Russia and the United States.
When examining the reasons for the discontent in Africa toward the ICC, much criticism revolves around accusations of undermining national sovereignty, unfairly targeting Africans and African leaders and being a Western tool with a bias against Africa.
The ICC, from its side, has denied these allegations, maintaining it is following a course of justice for victims of war crimes committed on the continent. It also has an obligation to ensure that any perceived or real prejudice linked to its operation against leaders on the African continent is eliminated.
The ICC Spokesperson Fadi El Abdallah said that the way to restore African confidence in its jurisdiction is to continue providing justice and to continue with fair proceedings respecting the rights of the victims and the rights of the defendants. He also said that the ICC is open to discuss any further concerns that are related to better explaining some of the decisions the court has taken.
But not all in Africa are in favor of withdrawal from the ICC. Nigeria’s Minister of Foreign Affairs Geoffrey Onyeama said the court has “an important role to play in holding leaders accountable,” and that “Nigeria is not the only voice agitating against withdrawal, in fact Senegal is very strongly speaking against it, Cabo Verde, and other countries are also against it.”
In the absence of the ICC in Africa many observers ask what could replace it. One possible option is the African Court on Human and Peoples’ Rights, established by the AU in 2004, which adopted the Malabo Protocol in 2014. This Protocol will expand the court’s mandate to include international criminal law. For the Protocol to come into force however, it has to be signed and ratified by at least 15 states, which has yet to happen. It also grants immunity to sitting heads of state, which is contrary to the ICC’s jurisdiction. This creates problems with legitimacy in many parts of Africa.
Ultimately, no one is above the law, despite their official status. As long as the ICC is seen to adhere to its mandate of bringing those responsible for atrocities to justice, a mandate given by signatory states, then it has a valuable place in society.