African solutions to global problems? South Africa’s withdrawal from the International Criminal Court

Juan Francisco Lobo

Juan Francisco Lobo

Academic Coordinator at MOOC Chile
Lawyer, Universidad de Chile. Professor, Legal Theory, Universidad Diego Portales. Professor, International Criminal Law, Universidad Adolfo Ibáñez.
Juan Francisco Lobo

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    During last October of 2016, Burundi became the first country of the 124 members of the Rome Statute establishing the International Criminal Court (ICC) to announce its withdrawal from the treaty. Shortly after, Gambia and South Africa followed suit. The latter has stated that the obligations set forth in the Rome Statute regarding the arrest and surrender of persons to the Court are at odds with South Africa’s obligations under international law. At any rate, these withdrawals will enter into force only one year after the decision is notified to the UN Secretary General.
    It has also been said that countries like Burundi, Gambia and South Africa are pulling out of the treaty due to the purported blatant bias against African countries in the record of cases so far prosecuted by the Court. Indeed, barring Georgia, all country situations under current investigation or prosecution by the ICC have taken place in African countries.

    Following South Africa’s announcement, it appears that the fashionable doctrine of “African solutions to African problems” is finally starting to catch up with issues of international criminal law, such as genocide, war crimes and crimes against humanity, in light of the anti-African bias. How to overcome such apparent bias?
    First, it needs to be recalled that the ICC is far from being an instrument of modern day imperialism. For one, the United States is no even part of the Rome Statute. Moreover, during the last decade the US signed bilateral treaties the world over in order to sabotage the ICC’s competence regarding acts committed in a series of strategic countries.

    What about other powers trying to manipulate the ICC to advance imperialism of their own? Only two of the five permanent members of the UN Security Council are parties to the Rome Statute, namely France and the United Kingdom. Yet, the largest individual funder of the Court is Japan, whose contributions represent 17% of the tribunal’s budget. It would be difficult to ascertain a hidden anti-African Japanese agenda behind this.

    But even if the rest of the world could be accused of conspiring against Africa, what about the behavior of African countries toward the ICC? Of the 10 country situations under investigation by the ICC, 5 of them have been referred to the Court by the concerned states themselves, namely Uganda, the Democratic Republic of the Congo, the Central African Republic (I and II), and Mali.

    In addition, among the preliminary examinations of the ICC there are several non-African countries, including Afghanistan, Colombia, Iraq, Israel, Cambodia and Ukraine. Further, the lack of an ICC involvement in other parts of the world does not mean that an international component may not be found in different international criminal law experiences, such as the hybrid courts created over the last years for East Timor, Cambodia, Bosnia and Herzegovina, Lebanon and Kosovo. They all evidence an active involvement by the international community in matters of international criminal law all over the world, only not through the ICC.

    Are genocide, war crimes and crimes against humanity perpetrated in African soil an exclusively African problem? They actually affect legal interests that are common to all of humankind, including dignity and human rights. The fact that a towering country in the continent such as South Africa is willing to withdraw from one of the foremost landmarks in the history of international law is an ominous sign, one which may bring about a domino effect throughout the continent.

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