The Court in Recession

Last week, the government of South Africa announced their intention to withdraw from the International Criminal Court. The announcement came as a surprise to many, as South Africa has been a relative beacon of liberal democracy on an often-troubled continent since the end of apartheid. Their support for the ICC, while never exceptionally enthusiastic, had been taken for granted by many internationalists. After all, why wouldn’t South Africa support an international body to address human rights violations after they addressed similar issues inside their own nation with great success?

South Africa supports the mission of the ICC, as they have said numerous times; they take exception to what they see as biased enforcement of international law. The Court has only convicted four people in its history, all of whom are African. The Court has three current cases on trial, and all three defendants are African. Of the ten current situations around the globe that have caused the Court to dispatch investigators to explore bringing charges, nine are in Africa.

South Africa believes that the Court has failed to look into problems on other continents. Members of the African Union have repeatedly claimed that some actions of U.S. soldiers in the War in Afghanistan should have triggered ICC investigations, but since the United States is not a party to the treaty, the ICC lacks the authority to prosecute. Acts in the Palestinian territories committed by both Hamas and the Israeli Defense Forces would likely also qualify for Court action, but Israel refuses to sign the treaty, and the Palestinian Authority is reluctant to push its case since they would have to admit to war crimes perpetrated by Hamas in the process. The civil war in Colombia has also resulted in what observers have called war crimes, but without the consent of Bogota and without a state party complaining (FARC being classified as a terrorist group), their preliminary investigations are unlike to become an actual prosecution.

Incidents around the world seem to violate the laws that the ICC is supposed to enforce, yet the Court spends a disproportionate amount of its time on Africa. Cape Town doesn’t deny that African leaders have committed crimes against humanity falling within the Court’s jurisdiction, but it feels that the Court has ignored similar violations elsewhere. Unless the Court takes significant steps to reshape its approach, South Africa appears likely to leave in late 2017.

Earlier in the same week, Burundi, which is under investigation for mass murder, imprisonment, torture, and rape, announced its intention to leave the ICC. While Burundi’s departure appears to be mostly self-serving, the South African declaration seems to validate Burundi’s objections. It also comes on the heels of Kenyan complaints over the Court earlier this year, as prosecutors have opened investigations into the Kenyan president for violence following his contentious reelection in 2007. Kenya has indicated that, if a prosecution against it is opened, it will strongly consider leaving the Court. In fact, the ICC has never enjoyed strong international support, and in a time of waning globalism, the Court’s prognosis does not look good. South Africa, Burundi, and Kenya leaving the body may be the prelude to larger-profile departures.

To its credit, South Africa does not contend that past prosecutions in Africa were wrong or invalid. Many of the ICC cases from Africa were originated at the request of the countries whose former leaders were being investigated (after a new government had taken over). Those same countries welcomed the Court’s verdicts in those affairs. South Africa’s protest is not centered on any individual case or cases, but rather on the Court’s overall agenda. It is hard to deny that the ICC spends most of its time and energy on the African continent, to the exclusion of others. And while obstacles impede progress in other countries, we still arrive at a problematic result: if all ten of the cases currently before the Court result in convictions, twelve out of the thirteen cases ever successfully prosecuted in the ICC will be African, constituting 92.3% of its work. 92.3% of the world’s war crimes, if such a statistic even makes sense, surely do not occur in Africa. Cape Town is tired of having its continent singled out by the Western-directed Court.

The United States originally signed the treaty setting up the ICC, but never ratified it and subsequently revoked its signature. Several major international players, including China, India, Pakistan, Turkey, and Saudi Arabia, never signed the treaty. Russia, Iran, and Egypt all signed the treaty, but have not ratified it. Without the support of a majority of the Security Council and lacking jurisdiction in many of the countries who are the worst violators of human rights, the Court has never lived up to its proponents’ promises. The Court’s limited successes thus far have occurred on the African continent, but by focusing almost exclusively on Africa, the ICC has turned many African nations against it. If South Africa, perhaps the most advanced democracy on the continent, is no longer willing to stand by the Court, its future in Africa seems dim.

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