South Africa threatens to withdraw from ICC, alleging anti-African bias

South Africa would become first state to withdraw from the international court, which has indicted mainly Africans

October 12, 2015 3:00PM ET

by Michael Pizzi   @michaelwpizzi

South Africa plans to become the first state to withdraw its membership from the International Criminal Court (ICC), a ruling party minister said Monday, marking the latest and most serious threat against the court by African leaders who say it disproportionately targets the continent.

The ICC has “lost its direction” and South Africa’s ruling Africa National Congress (ANC) plans to withdraw, Obed Bapela, deputy minister in the Presidency, told reporters on Monday after an ANC policy meeting in the capital, Pretoria. The party came to the decision this weekend, Bapela said, and will soon call for the country’s parliament to debate the matter.

The prospect of South Africa’s withdrawal from the body, which is permitted under the court’s founding Rome Statute but has never been invoked, was initially raised in June, when Sudanese President Omar Al-Bashir – wanted by the ICC for genocide and war crimes – visited South Africa for an African Union (AU) summit. A South African court ordered Bashir’s immediate detention, but President Jacob Zuma chose loyalty to a fellow AU leader over South Africa’s obligations to the ICC and allowed Bashir to leave the country safely.

A growing chorus of African leaders has argued that Bashir’s charges were just the latest example of the ICC’s inherent bias against Africans. The court, which operates on a principle of complementarity – meaning it can only intervene when a local judiciary is deemed unwilling or unable to prosecute – has so far only successfully indicted African citizens. While most of those cases were referred by the countries themselves, the prosecutorial record has nonetheless contributed to the court’s image problem, especially among Africans.

Powerful nations “trample” human rights and pursue “selfish interests,” Bapela said Monday. Despite the admonition to the court, however, he added that “South Africa still holds the flag of human rights, we are not lowering it.”

Withdrawing would block the court’s jurisdiction in South Africa and, because the country is one of the continent’s most vibrant democracies with the most mature legal institutions, it could also set a precedent for other African states to follow suit.

The ICC has not faced a pullout threat since 2013, when a group of African member states angered over the court’s announcement of charges against sitting Kenyan President Uhuru Kenyatta called for the continent’s en masse withdrawal from the body. Charges were subsequently dropped against Kenyatta, due in part to the Kenya’s refusal to cooperate.

Advocates for the court argue that anti-ICC leaders are using the cover of pan-Africanism to shield themselves from international scrutiny. While they admit that the court has many flaws – for instance, the absence of a leading power like the United States from its 123 members – it is nonetheless said to be a powerful tool against the continent’s rampant legal impunity, which they argue Sudan’s Bashir is currently enjoying.

“These leaders play up this issue that the ICC is an imperialist tool, they play up this issue of pan-Africanism,” said Ahmed Hussain Adam, a visiting fellow at Cornell University’s Institute for African Development, who is writing a book on the post-genocide peace process in Darfur, Sudan. “But all they are doing is shielding Bashir from justice.”

Others have noted that the apparently disproportionate targeting of Africans by the court is explained, in part, by statistical probability. Africa accounts for one-third of the court’s member states, as well as a large percentage of the violent conflicts that produce war crimes and crimes against humanity.

But the lack of confidence that has resulted in the court's largest constituency will remain a fundamental problem, wrote Nanjala Nyabola, a political analyst at Harvard Law School, in an op-ed for Al Jazeera. "This lack of confidence or concordance plays out in the way that Western nations balk at the prospect of holding U.S. citizens accountable at the court while African nations cheer, or when the West overtly uses the ICC to advance its goals in Sudan through the Bashir indictment, which Africa vehemently rejects.”