This post is contributed by Charlotte Crilly, Teaching Fellow for the Undergraduate Laws Programme.
With the recent withdrawal of South Africa, Burundi and Gambia from the International Criminal Court (ICC) in October 2016, what now is the future of the court? Although the withdrawal of these countries only represents three nations out of the 124 who signed up to the Rome Statute, the founding treaty of the ICC, it is still a significant set-back for the ICC, and there are fears that more withdrawals may follow.
The ICC was founded in 1998 by the Rome Statute, with the intention of there being a permanent international court to deal with the most serious crimes such as the crime of genocide, crimes against humanity and war crimes. The court was officially established in 2002, when the Rome Statute entered into force, after being ratified by 60 states. Before the establishment of the ICC, violations of international humanitarian law could only be dealt with by tribunals set up on an ad hoc basis for specific circumstances, for example the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
From the beginning, the ICC suffered serious problems and set-backs, notably the fact that the USA has always refused to recognise the court’s jurisdiction. The court has been criticised for the slowness of its proceedings, and a lack of progress. During the whole of its time of operation, the court has only returned four verdicts: three guilty and one not-guilty.
Why are South Africa, Burundi and Gambia now withdrawing from the court’s jurisdiction? Various reasons have been given, but an underlying theme is the criticism of the ICC for unfairly targeting its investigations at Africans. Of the 10 cases currently being investigated by the court, nine of these involve defendants from different African countries, and of the three trials currently being heard by the ICC, all of these relate to African nationals.
The counter-argument has been put by Amnesty International, that ‘for many Africans the ICC presents the only avenue for justice for the crimes they have suffered’. It should also be noted that 33 African states have ratified the Rome statute, making Africa the largest continental bloc to sign up to the court’s jurisdiction, so perhaps more vulnerable to investigation.
For the three countries that have given notice of their intention to withdraw from the court, there is now a year-long exit process to complete. Will other countries join them in withdrawing? Political analysts have said that more African countries may announce their intention to leave in the next few weeks, possibly including Chad, Namibia and Kenya. But other countries have reaffirmed their membership of the ICC, with Botswana recently issuing a statement of support.
This is unlikely to be the end for the International Criminal Court, but there may be testing times ahead.