A Critical look at South Africa, Burundi and Gambia decisions to leave the International Criminal Court

Feature Analysis
On the basis of alleged institutional bias against Africa and its leaders continued to be propagated byAfrican Union (AU) despite sharp opposition from some member states (Côte d’Ivoire, Nigeria, Senegal, and Tunisia, Botswana, Sierra Leone, Gabon, Central African Republic, Tanzania and Mali) South Africa, Burundi and the Gambia have recently expressed their intention to withdraw from the International criminal Court (ICC). As a crutch for the allegation, the AU argues that out of the ten cases being currently probed by the office of the prosecutor being in Africa (Mali, Cote D’ Ivoire, Central African Republic, Libya, Kenya, Sudan, Uganda, Democratic Republic of Congo), Georgia is the only country outside Africa facing trial.

As the obvious or expected, there have been mixed reactions across Africa. In Liberia, many which could be deduced as in solidarity or sympathizers of former President Charles Taylor welcomed the move or decision. On the contrary, all of the views by some reflect Article 4 of the constitutive act of the AU which expressly and unequivocally rejects acts of impunity in Africa. In other words, they considered the move or decision to be inimical to justice as one of the “shared values” to be preserved and protected at all times by the AU.

Respecting the sovereign rights of South Africa, Burundi and the Gambia decision to quit the ICC coupled with all of the mixed reactions across Africa, this article using the case of the indictment of Sudan President Omar al-Bashir as the premise critically and comprehensively examine the decisions of these three Countries.

To start with, it is important that a synopsis of the reasons behind the decision be considered. South Africa South Africa justified its decision to quit the ICC stemmed from the apparent conflict with its obligations to the African Union to grant immunity to serving heads of states. This was manifested in 2015 the AU summit in June when South Africa as a host came under vehement criticism domestically and internationally for its refusal to honor the arrest warrant of Sudanese President Omar al-Bashir indicted for crime of genocide, crimes against humanity and war crimes.

Burundi Unlike South Africa, Burundi accused the ICC as a ‘Western tool to target African governments’. As a crutch of its allegation, Burundi claimed that the ICC inability to try heads of state/leaders of any of the P5 countries (China, France, Russia, the United Kingdom, and the United States) or even inaugurate preliminary investigations against them for acts of impunity is indicative of being bias. Although viewing the ICC as ‘Western tool to target African governments’ is Burundi expressed reason. However, it worth arguing that the ICC chief prosecutor Fatou Bensouda announcement in April 2016 to inaugurate a preliminary investigation into acts of killing, imprisonment, torture, rape and other forms of sexual violence in Burundi could be the driving force for escape route from indictment based on warranty or evidence that may be gathered from the preliminary investigation. Burundi is faced with political crisis caused by the injudicious decision in April by President Pierre Nkurunziza to secure a third term over the objections of his opponents, both Hutu and Tutsi argued that the action violatedArticle 23 of Burundi’s post-civil war constitution. Since then, the international media have reported incident of violence that at least killed 240 and caused more than 180,000 Burundians to flee to neighboring countries.

The Gambia Similar to Burundi, the Gambia citing the ICC inability to prosecute former British Primary Minister Tony Blair for his role in the Iraq war, accused the court of “persecution and humiliation of people of color, especially Africans” Granted or agreed that this is the Gambia expressed reason. However, it worth arguing that the questionable human rights track record, including the crackdown on political opponents could spark off or initiate preliminary investigation by the ICC. As such, the expressed reason for withdrawal could be inferred as looking for escape route for any eventuality relative to indictment. Interestingly, the ICC chief prosecutor Fatou Bensouda is a national of the Gambia.

The Case of Sudan  On 31st March 2005, the UN Security Council acting under Chapter VII of the Charter of the United Nations (“UN Charter”), that makes determinations of threats to peace on an international level and recommends or decides what measures shall be taken concerning that threat, passed Resolution 1593 to the ICC prosecutor to investigate who bears the greatest responsibilities of the Darfur conflict. Interestingly, Benin and Tanzania were among the eleven countries that voted in favor of the Resolution 1593. It was from this investigation president Omar al-Bashir as an individual without regard for his status was indicted despite Sudan is not party to the Rome Statue the created the ICC. What is the legal basis for the ICC action?

The Jurisdiction of the ICC over nationals of state non- party to the Rome Statute According to the Rome Statute, there are three ways in which the ICC exercise jurisdiction over nationals of state non- party to the statute. (1) As in the case of president Bashir, the ICC may prosecute nationals of states not party to the statute in situation referred to the prosecutor of the ICC by the UN Security Council. (2) Non- party nationals are subject to ICC jurisdiction when they have committed a crime on the territory of state party to the ICC Statute or has otherwise accepted the jurisdiction of the court as it relates to the crime. (3) The jurisdiction of the court may be exercised over nationals non-party to the ICC when the non-party state has consented to the jurisdiction of the court as it relates to the crime. According to legal experts, in either of the first two circumstances, the consent of the state of nationality is not a prerequisite for the court to exercise jurisdiction. In the case of Sudan, by virtue of the referral from the UN Security Council, the ICC don’t need the consent of the Sudan as a state to try President Bashir as it’s national. In other words, this could mean that the consent from Sudan should they refuse is irrelevant to the prosecution. This could also mean a matter of time for the ICC to grab Bashir after his tenure as president.

Let’s agreed that case of Sudan have attracted lots of legal debate regarding the jurisdiction of the ICC. Amidst these debates, nothing has ever changed or nullifies the indictment or the arrest warrant. We wait to see or listen to the legal argument in court in the future holding all factors constant.
If Burundi and the Gambia including other African Countries beside South Africa are apprehensive or thinking about pending investigation that would warrant indictment for which they are using the allegation of the ICC of being biased as the escape route, the case of Sudan as argued in the paper is another argument in support for no escape route.
Unlike the P5 countries who are non-party to the ICC Statute that have all of the resiliencies of not subjecting its members to ICC, it worth arguing that due to bad governance that reduced most of the African Countries to international assistant, withdrawal from the ICC may show no significant different on grounds of lack of resiliences to resist the pressure of turning over an inductee who may be national of a non-party state to the ICC Statute.

By Ambrues M. Nebo-