In July 2008, the International Criminal Court (ICC) issued an arrest warrant for Omar al-Bashir, the Sudanese President. The arrest warrant accused him of genocide, crimes against humanity, and war crimes, despite Sudan not being a party to the Rome Statute and the ICC. Already, there had been increasing calls to leave the ICC. Now, many African nations such as Egypt, Congo, Uganda, Kenya, Djibouti, Malawi, and South Africa decidedly went against the ICC and refused to detain and surrender then President Al- Bashir. Much of this comes from the difference between values of Western nations and other powerful actors in the ICC and African norms. 

The Conflict Between Anti-Impunity and African Norms

African states have often preferred many fundamental norms such as sovereignty, peace, anti-colonialism, pan-African solidarity. In comparison, pro ICC groups have often fought for anti-impunity norms, a very Western judicial perspective on solving and addressing justice. This divide in norms and perspectives has run the risk of having other African nations who are signatories to the Rome Statute such as Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Mozambique, Sao Tome and Principe, Sudan, and Zimbabwe almost fail to ratify the Rome Statute. As a Senegalese NGO representative has said, “‘[a]part from its Southern part, the continent remain[ed] unmotivated by the ICC because of a lack of information, but also because many Africans feel the ICC is created in order to put their heads of state on trial.” Many have expressed similar sentiments as the Rome Conference did not broadly discuss sitting Heads of States and amenities. 

Multiple pro ICC actors have argued that anti-impunity norms are essential in advancing and progressing justice and peace, but along the process have delegitimized the contestation. Demands for reform of the ICC are not meant to delegitimize the process. The court system in itself is a Western judicial norm, and the ICC includes multiple countries that have often focused on reconciliation and restoration and do not focus on punishing offenders and attributing criminal responsibility to certain actors. Consideration for countries such as Uganda who have often amenities in the administration of justice often remained ignored. As members of the Ugandan parliament have stated, African nations have limited ability to influence the international court system. They are expected to follow the views and rules of others to implement international justice in their own country.  While this demonstrates the need for African states to assert their opinions and values as a bloc, it also demonstrates that African voices often are not heard in the international sphere. 

More than anyone else, African countries have faced the highest occurrence of human rights violations internationally. As the largest bloc of countries in the ICC, comprising a third of the 122 parties to the Rome Statute, African requires the ICC to handle the case load. African actors, whether governments, civil society actors, or individuals want to end the abuses to humanity that they face, but are concerned with the way they will receive it from the ICC. The power of the ICC can only be strengthened by allowing debate on proper usage and definition to reach a consensus by those affected by norms. 

South Africa: A Case Study

Just over 10 years ago, apartheid South Africa was an outlaw, an outcast from the community of nations. As we rejoice at the achievement of democracy and freedom, we also celebrate our elevation to global partner and a champion for Africa and other developing nations, and a bridge between North and South. -Nelson Mandela

South Africa’s role in Africa has often defined their relationship with the ICC. Previously, South Africa was the strongest supporter of the ICC as one the strongest supporters of human rights in Africa. After 1994, post-apartheid, when the perception of South Africa changed,  South Africa sought to play a strong role in international criminal justice. It ratified multiple human rights treaties immediately and one of the judges, Richard Goldstone, was appointed as the first prosecutor to two ad-hoc tribunals. South Africa was one of the first signatories to the Rome Statute and was one of the first five nations that amended its penal code to match the Rome Statute. It created legislative frameworks to handle cases of genocide, war crimes, and crimes against humanity. This allowed the Southern African litigation Centre to try a torture case on behalf of Zimbawaens. This involved several actors including South African Police Service to investigate crimes against humanity committed in the country. 

The change in perspective occurred with the changing role of South Africa in Africa. South Africa grew to become one of the BRICS (Brazil, Russia, India, China, South Africa)  countries, thus a major leader in Africa. Its focus shifted away from human rights and towards more “pragmatic, regional concerns for African solidarity.”  As Mandela noted in the quote above, South Africa was now a bridge between the global North and the global South and thus played a strong mediator role in the international community. South Africa became the first African nation to attempt to withdraw from the ICC as a means of showing leadership among African nations. There were several other African countries that had also considered the same thing. 

To demonstrate leadership, South Africa’s local government in Tshwane (Pretoria) failed to arrest President Omar al-Bashir who had committed human rights violations in the Darfur Conflict. It argued that just like all those who had attended the Rome Summit, al-Bashir was granted diplomatic immunity and appealed the ruling by the ICC. The government also noted that South Africa had interests in avoiding al-Bashir’s arrest, citing threat of terrorism and continental business interests. Corlett Letlojane, Executive Director of the Johannesburg-based Human Rights Institute of South Africa (HURISA), ascribed the government’s action to a decreased interest in human rights and lack of attention to local civil society actors. While previously Tshwane’s government held and maintained close communication with human rights activists and discussed matters of concerns before UN Human Rights council meetings, the government had delayed submitting reports to international bodies and authorizing human rights law domestically. This shift in its position has been given to csos (civil society organization) instead. 

While many have argued that South Africa has thrown away its role as a human rights protector, that perception has failed to recognize the realities of transitional development. Comparatively, Western nations have been able to abuse human rights with impunity and with limited consequences for their actions. African nations, several in transitional stages of development, are now at the point where they must balance national interests and human rights norms. Without providing alternative solutions that are not one-sided, South Africa has stated, it should not be held to higher standards than others. 

The Issue with the UN Security Council (UNSC)

Most of the cases heard in the early days of the ICC were self-referrals by the African nations themselves though a couple were referred by the security council. Those referrals faced intense backlash and accusations of being undemocratic and used to maintain the power dynamics of 1945.  The ICC’s lack of political independence from power dynamics only delegitimizes its power and  threatens its objective to hold those who commit atrocities accountable. African nations are not looking just to leave the ICC, but are looking for reform and the diminishment of these power dynamics. To many African countries, the ICC targets weaker nations such as African countries while allowing bigger players in the international stage such as Russia, China, US, and India to avoid any sort of accountability.  Furthermore, the UNSC can refer countries to the ICC despite only France and Britain being States parties to the Rome Statute. This condition made the al-Bashir case more important as Africans saw that the ICC will not hold accountable Western non-members states, yet will hold accountable African non-member states. As a Kenyan minister stated : “it is only Africans from former colonies who are being tried at the ICC. No American or British will be tried at the ICC and we should not be willing to allow ourselves to return to colonialism”. It will continue to view the ICC the same way unless there is change made to address the difference in perceptions and change made about the power dynamics.

Author Biography: Ritu Boopathy is Moderator of the International Law and Policy Brief (ILPB) at The George Washington University Law School. She obtained her Bachelors in Political Science at Georgia State University and currently pursues a JD degree at George Washington University.