Whose Rules to Play By: The African Union and the ICC

11.09.16
Stephan Röhl
World News /09 Nov 2016
11.09.16

Whose Rules to Play By: The African Union and the ICC

Within the past month, Burundi, South Africa, and Gambia have all announced their intention to withdraw from the International Criminal Court (ICC), claiming their departure a necessary reaction to the racist and unfair trials by the ICC against the African nations. The announcement is somewhat long awaited, as such claims against the ICC are not new. But the effect that these decisions will have on other African countries poses fear of a domino effect in Africa, with more countries quickly following suit.

In understanding the reality of such a threat, it’s important to remember that Africa is by no means a unified entity, but that each nation approaches the ICC with its own background and concerns. We cannot automatically assume that this domino effect will apply equally to all. What is important to consider, though, is the role that the African Union (AU) is playing in persuading countries to follow Burundi, South Africa, and Gambia, despite any logical plan behind the action. The AU’s strong support and encouragement of withdrawal from the ICC is dangerous for Africa, as well as the global community, in that it threatens the importance of the ideology of justice and cooperation, is unable to create an alternative solution to the ICC for African countries, and loses practical power and the opportunity to reform the institution from the inside.

Despite a call for such a domino effect, not all African countries are ready to follow suit. While countries like Uganda and Kenya have strongly spoken out against the ICC, many others such as Tanzania, Sierra Leone, and Nigeria have confirmed their support and intention to remain in line with its values and policies, despite the actions of their neighbors.

The AU claims that their intentions to exit are a consequence of unfair attention towards Africa by the ICC, as nine of the court’s ten full-fledged investigations involve African politicians and warlords. It is possible that although Burundi, South Africa, and Gambia believe this racism to be true, they also have underlying personal reasons for their intended exit.

For example, Burundian President Pierre Nkurunziza has a high imminent risk of being investigated by the ICC for possible crimes against humanity after taking up an unconstitutional third term. If Burundi can leave the ICC, it is likely that he will avoid such punishment. In addition, South Africa is unhappy with the ICC for being scolded for not arresting Sudanese President Omar al-Bashir, who is on the ICC’s most wanted list, when he attended a summit in Sandton last year. In some respect, this is a bit of revenge for the nation.

Still, it’s undeniable that the AU’s claims of geopolitical prejudice against the African continent do have validity in the ICC’s inability to equally administer justice to more powerful nations, such as the United States, China, and Russia, all of whom did not ratify the Rome Statute and therefore are not bound by the standards and laws of the ICC.

As members of the UN Security Council, these countries can protect themselves and their allies more readily from such prosecution due to their ability to veto. From the AU’s perspective, without these nations the ICC cannot function efficiently or fairly at a systematic level, instead it is forced to target African nations, which cannot protect them in such a manner.

Yet leaving the ICC will not do the AU any good for two important reasons. First, as African countries leave the ICC, they are giving up any opportunity to reform the institution from the inside. For a continent that has endured a lot of corruption and tragedy amongst powerful leaders against their citizens, the ICC has taken time and attention to try to find justice in those situations.

While it may not be perfect, it is a necessary step to holding leaders and government accountable, proving that there will be punishment on the international level if certain crimes occur. This is protective and supportive for the African people’s safety, is evident in the letter that 130 African non-governmental organizations signed to the AU, which warned against a withdrawal from the ICC. Instead of leaving the institution, these nations must make an effort to call for reform as a constructive part of it.

With the current chief prosecutor, Fatou Bensouda, a native of Gambia, it is an opportune moment for African nations to speak up. Second, the AU does not have a feasible alternative for the ICC. Only nine of the fifty-four nations in Africa have signed into the AU’s international court. Therefore it does not hold the authority necessary to try war criminals on a scale that would be asked of it. It is naïve to believe that a majority of African nations will come together in action to leave the ICC, as each country has unique policies from and Africa as a continent is by no means unified. This would leave confusion and deconstruction of an international justice system for the continent.

The AU’s strong message may seem tempting as a quick, internationally loud response to the ICC, but its tactics and reasons for doing so are simply more harmful than helpful for the protection and integrity of the African people. The lack of ability to reform from the outside and lack of alternative options that the AU calls for, means that withdrawal would create an irrational and impulsive attempt at change that other African nations will not, and should not follow.

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