ICC Forum

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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

Diplomacy as a Response to ICC Withdrawals

Summary

The International Criminal Court (ICC) should deploy a strategy of radical diplomacy in response to the recent withdrawal from the court of South Africa, Burundi, and the Gambia, before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court.

Argument

South Africa, Burundi, and the Islamic Republic of the Gambia’s recent announcement of their intention to withdraw from the ICC has led to much speculation and uncertainty regarding the future of the court. Much of the concern centers around South Africa, with proponents of the court worrying that the nation’s status as a regional leader could serve as an example for African rulers who want to capitalize on the moment to elude international accountability for their own actions. This speculation has proved true in at least one instance, with Gambian President Yahya Jammeh’s announcement of withdrawal coming hot on the heels of South Africa’s announcement. Given these fears, it is imperative that the court take decisive action to mitigate the damage caused by these announcements and to prevent a possible domino effect. Some have proposed making sweeping changes to the structure of the court in response to popular criticisms. I disagree with an act first, ask questions later approach and argue that the court deploy radical diplomacy before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court. Thus, the court should utilize its own procedures, as well as the support of states parties and international allies to conduct talks with South Africa with the express goal of addressing legitimate concerns and finding possible solutions.1

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Firstly, it is important to note that South Africa, Burundi, and the Gambia have only expressed their intention to withdraw and have not officially done so yet. Therefore, all three countries will continue to be members of the ICC for at least another year.2 So the major question is whether the ICC can take measures in the interim to either prevent the countries from withdrawing or mitigate the damage resulting from their withdrawals. In answering this question, I will focus my analysis primarily on South Africa not only because of its status as a leader in Africa and one of the early proponents for the creation of the court, but also because the withdrawals of both Burundi and the Gambia seem to be purely inspired by a desire to avoid international scrutiny of ongoing human rights violations by their respective leaders. The best response to these opportunistic withdrawals is to launch investigations into human rights abuses perpetrated in these countries before the one-year period expires. The ICC has already begun an investigation of Burundi and should also do so in the Gambia.3

The catalyst for South Africa’s withdrawal was its refusal to arrest Sudanese President Omar Hassan Al-Bashir on his official visit to South Africa in 2015. This refusal was seen as a repudiation of its mandate to arrest wanted criminals under the Rome Statute, and drew harsh criticism from the international community. Subsequently, South Africa cited “legal uncertainty” as the major reason for its withdrawal from the ICC, stating that the Rome Statute “blocks South Africa from resolving conflicts through dialogue, including inviting adversaries for visits” and that it “‘is in conflict and inconsistent with’ South Africa’s law giving sitting leaders diplomatic immunity.”4 Another resounding concern expressed by many African nations is that the ICC seems to have focused all its efforts in prosecuting Africans to the exclusion of all other human rights abusers. All of these concerns, if legitimate, can be addressed effectively through discussions with South Africa and any other nation that might seem vulnerable to withdrawal. In fact, the court must address these concerns if it is to retain its legitimacy.

Negotiations will allow the court to fully gauge South Africa’s true motives for withdrawal and propose appropriate solutions to good faith concerns. There are various diplomatic and unofficial solutions that could be offered by the court in negotiation discussions. For instance, the court could offer to invest its own resources to engage legal experts to advise the South African government on how to comply with both the Rome Statute and existing South African law. Alternatively, it could offer to advise South African lawmakers on how to draft local legislation to comply with the Rome Statute. The court could also issue new enforcement guidelines in response to specific concerns voiced by South Africa, including outlining enforcement priorities and goals regarding the arrest issue. This would allow the court to provide realistic compromises to state leaders in the short term while working towards stricter enforcement over time. This would also give nations time to adopt the mandates of the Rome Statute into their local legal norms over time without feeling pressured to completely overhaul their local laws and customs overnight.

Even if these discussions do not result in immediate solutions such that South Africa decides to remain in the ICC, they will help dispel criticism that the court is not concerned with hearing what Africans have to say but instead is concerned only with indicting African peoples and nations. Getting South Africa (and other concerned member states) to the table and conducting arms-length negotiations, and actually addressing their concerns rather than dismissing them out of hand is the best way to show African nations that the ICC is not just another imperialistic power concerned with telling Africans how to conduct their lives. This is not just an altruistic concern but also necessary to stop corrupt and despotic leaders from exploiting the rhetoric of a racist, imperialistic court to withdraw from the ICC in order to perpetuate or turn a blind eye to human rights atrocities in their countries.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Joel Wickwire, South Africa to Withdraw From International Criminal Court, Liberty Voice, Nov. 7, 2016, available online. ↩

  2. 2.

    Aryeh Neier, Africa Versus the International Criminal Court, Project Syndicate, Nov. 7, 2016, available online. ↩

  3. 3.

    ICC to Investigate Burundi Political Violence, Al Jazeera, Apr. 25, 2016, available online. ↩

  4. 4.

    Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩

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