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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?”

emrenslo
5015
November 16, 2016
12:17 pm

Sanctions as a Penalty for Withdrawing from the ICC

Summary

Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC.

Argument

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 International Criminal Court. Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC. By doing this, the states parties of the ICC will send a strong message that atrocities will not be tolerated anywhere in the world, while also dissuading other countries from withdrawing from the ICC in the future.

The ICC is a U.N. body that can prosecute individuals who have committed war crimes, genocide and other crimes against humanity. Its jurisdiction covers only places where recognized governments are unwilling or unable to carry out judicial processes themselves.1 The leaders of both Burundi and Gambia are current targets of ICC actions and accused of perpetuating widespread human rights violations. South Africa’s government, in stark contrast to Burundi’s and Gambia’s, is a maturing multiparty democracy that generally upholds human rights.2 However, Pierre Hazan argues that the withdrawal of South Africa from the ICC, which is not being currently targeted by the ICC and therefore does not have “its back to the wall,” gives some kind of legitimacy to all other African States to pull out.3

It is widely argued that the common factor in the departure of all three countries is the underlying perception that the ICC is an outside institution imposing its will on African nations without their input, perpetuating a history of Western intervention and African oppression.4 However, Luis Moreno-Ocampo argues that this African bias discussion is merely covering up that there are currently African heads of states planning or committing massive atrocities to retain power; that the ICC is currently the only institution designed to be effective at preventing and punishing international crimes; and that the international legal order is going backwards.5

States parties of the ICC should impose targeted sanctions to the leaders of Burundi and Gambia. Withdrawing from the ICC during a current investigation, with the apparent intent to avoid future prosecution, cannot be tolerated. The ICC must continue their current investigations into these countries, regardless of any announced intent to withdraw. The ICC cannot be effective if a country’s leader can merely withdraw from the ICC, mid-investigation, with zero consequences. South Africa should not necessarily be immune to the possibility of sanctions, even though there are major differences to the situations in Burundi and Gambia. The loss of any area of jurisdiction by the ICC weakens its ability to stop atrocities from being committed in the future.

As one can imagine, the countries most likely to be in favor of sanctions are the same countries accused of perpetuating an ICC bias. However, established countries have long sanctioned developing countries for human rights violations. Without sanctions, leaders of countries are further incentivized to anticipatorily withdraw from the ICC in foresight of atrocities that they plan to commit or knowingly allow to happen. States parties of the ICC need to intervene and show that this conduct will not be tolerated.

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

1.
Why Africa Is Turning Its Back on the International Criminal Court, Stratfor (Oct. 27, 2016), [hereinafter Turning Its Back], available online. ↩
2.
Id. ↩
3.
Pierre Hazan, Could quitting the ICC spell more violence in Africa?, Swiss Info, Oct. 27, 2016, available online. ↩
4.
Turning Its Back, supra note 1. ↩
5.
Luis Moreno-Ocampo, From Brexit to African ICC Exit: A Dangerous Trend, Just Security (Oct. 31, 2016) available online. ↩

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