South Africa became on Friday the second African country to announce that it planned to leave the International Criminal Court, a decision that campaigners for international justice say could lead to a devastating exodus from the embattled institution.
The move came three days after after Burundi’s president signed a decree making his country the first to withdraw from the court, which had planned to investigate political violence that followed the president’s decision last year to pursue a third term.
“There is a real chance that there will now be large-scale African withdrawals,” said David L. Bosco, an associate professor of international studies at Indiana University who has written a book on the court. “The Burundi decision was easy to dismiss as a government seeking to avoid direct scrutiny; South Africa’s is much more significant. The African Union has been a forum for anti-I.C.C. sentiment, and countries like Kenya and Uganda may now seek to capitalize on the momentum.”
Back in April, the ICC announced that it would open an investigation into the violence that accompanied Pierre Nkurunziza’s decision to seek an constitutionally questionable third term as Burundi’s president (he won that third term, of course, last July). So, yes, Burundi’s decision to leave the court does seem a bit self-serving. But South Africa, you’ll recall, basically told the ICC to go pound sand last June, when the court called upon South African authorities to arrest Sudanese President and “alleged” war criminal Omar al-Bashir during the African Union summit in Johannesburg–a South African court ruled that Bashir should be detained, but only after he’d already been allowed to leave the country. And there’s no open or potential case at the ICC involving South Africa.
Instead, South Africa is simply part of a growing chorus of African nations who feel like they were sold a bill of goods back when they signed on to the ICC in the early 2000s. Apparently they assumed that the “international” part of “International Criminal Court” actually meant “international,” when in reality it actually means “African.” Since 2002 the ICC has opened ten official investigations in nine countries–all of them African. It has opened preliminary investigations into several non-African nations, including Afghanistan, Ukraine, South Korea, Iraq, Palestine, and Colombia, but none have yet gotten past that preliminary stage. The reasons for this can be justified, to a point, but it doesn’t look good. And when the United States, which pulled itself out of the ICC, goes around criticizing other countries for pulling out of the ICC, well you can just imagine what kind of reaction that gets.
South Africa is unlikely to be the last African country to pull out of the ICC, and in fact it’s a little surprising that they were the second to do so. Uganda has seemed like a lock to withdraw for a while now, and Kenya is high on the list as well. Leaders in both of those countries, like Nkurunziza, are ICC targets, so there’s some self-serving impulse involved there. A full-on African exodus from the ICC would raise serious questions about its ability to continue functioning, given that it’s been unable to bring an official case on any other continent, and given that it’s likely that other at-risk nations will simply follow the Africans’ lead and also withdraw from the court. Cases can still be opened in non-ICC member states, but that requires a referral from the UN Security Council. Anything at the UNSC can, of course, be blocked by any of the five veto-holding members, which is why it’s huge news when the UNSC actually accomplishes something. So the future of the ICC seems cloudy to say the least.