On 26 October 2016, Gambia became the third African country to announce its intention to leave the International Criminal Court (ICC). The decision came shortly after both Burundi and South Africa expressed similar intentions, claiming as several other African countries have, that the ICC is biased and used as a tool against African nations and their leaders. On 22 February, a full bench of the North Gauteng High Court found South Africa’s decision to withdraw, invalid and unconstitutional. It ordered the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services, and the President, to revoke the notice of withdrawal sent to the UN Secretary-General.
While the decision of some African countries to withdraw from the ICC has been criticised, in an article in The Guardian titled “African revolt threatens international court’s legitimacy”, Simon Allison expressed the concern that the ICC may lose credibility if states continue to leave the court.
In the New York Review of Books, Kenneth Roth assesses the ICC’s focus on Africa. Roth questions whether the court’s focus on Africa was taking advantage of its “weak global position” or alternatively, “as a sign that finally someone is concerned about the countless ignored African victims”.
The ICC was established in 1998 as an international tribunal to prosecute crimes of genocide, crimes of aggression, crimes against humanity, and war crimes. Only states that have signed the agreement are bound to it.
According to the ICC website, there are currently 10 situations under investigation by the ICC. Nine of these situations are found in Africa with the tenth being in Georgia. However, there are 10 further preliminary investigations, only four of which are based in Africa. These are Burundi, Gabon, Guinea, and Nigeria. Furthermore, there have been 39 indictees to date, all of whom are from African countries. Due to this, the ICC has faced harsh criticism, especially from African heads of state. Former Gambian President, Yahya Jammeh, was quoted on Gambian state television saying that the ICC was “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”
Furthermore, the ICC is currently prosecuting cases in eight African countries. However, out of the eight cases, five were referred to the ICC by the states concerned with the matter. These states are the Central African Republic, the Democratic Republic of Congo, the Ivory Coast, Mali, and Uganda. The situations being prosecuted by the ICC in Libya and Sudan were referred to the ICC through the United Nations Security Council (UNSC). In the case of Sudan, 11 votes favoured referring the case to the ICC, with no votes against the decision. The situation in Libya, which arose from the Libyan crisis in 2011, saw the UNSC also refer the matter to the ICC through a UNSC resolution.
According to an article on the Human Rights Watch website, titled “Burundi: ICC withdrawal major loss to victims”, Africa Director for Human Rights Watch, Daniel Bekele, criticised the move by African countries to withdraw, pointing out in the case of Burundi that “[it] had failed to hold people responsible for brutal crimes to account and [had] sunk to a new low by attempting to deny victims justice before the ICC.” Bekele added that African countries should distance themselves from ICC withdrawal, reiterating that the ICC “remains the only path to justice for many victims of the gravest crimes when national courts are unable or unwilling to try these cases.”
On 7 March, South Africa issued a notice formally revoking its withdrawal from the ICC, following the Gauteng High Court’s February judgement. This was confirmed by UN Secretary-General Antonio Guterres in a statement titled “South Africa: withdrawal of notification of withdrawal” published on the UN treaties website on the same day: “I wish to inform you that the Gauteng High Court of the Republic of South Africa has on 22 February 2017 issued a judgement […] and found that the approval of the Parliament of South Africa had to be obtained,” adding that “the abovementioned depositing of the Instrument of Withdrawal was found to be unconstitutional and invalid.” He continued, “In order to adhere to the said judgement, I hearby revoke the Instrument of Withdrawal from the Rome Statute of the International Criminal Court with immediate effect.” According to an article on TimesLive dated 8 March citing Reuters news agency, it said that the South African government had been requested to appear before the ICC at The Hague on 7 April, following its failure to detain Sudanese President Omar Al-Bashir.