Africa and the ICC: Shattered Taboos, and the Status Quo

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters.

Universality

It has now been more than seven years since the AU’s first denunciation of the ICC and its first call for non-cooperation with the Prosecutor’s arrest warrant against Sudanese President Al-Bashir. To put that into perspective: seven years is more than half the Court’s short lifespan (the first ICC Prosecutor’s mandate began in mid-2003).

As the debate about the ICC’s perceived Africa bias drags on, the prospect of universal membership recedes. The withdrawals of South Africa, Burundi and the Gambia are symptoms of a much bigger problem that has been growing for years. With countries like India, China, Russia and the United States declining to ratify the Rome Statute, over half the world’s population does not fall under the ICC’s jurisdiction. More importantly, the pace of new ratifications has come to a virtual standstill. In the past, four to six new states would join the Court every year, but since 2012 that number has dropped to just one accession per year (see here for a chronological list). Even this is a very optimistic reading of the figures, since Cote d’Ivoire (acceded 2013) was a de facto member since 2003, while Palestine (acceded 2015) applied for membership in 2009. That means the ICC has gained just two truly ‘new’ members – Guatemala and El Salvador – since 2012.

Critics will point out (correctly) that there is no causal evidence that the ICC’s festering dispute with Africa has contributed to the reduced pace of ratifications. It is of course possible that the Court’s membership simply peaked in 2011, meaning that states who would have joined the Court anyway had already become members, whereas it was always going to be difficult – or impossible – to convince naysayers like Russia or the United States to accept the ICC’s jurisdiction.

The declining pace of ratifications may be a curious coincidence, but other evidence suggests that the ICC’s ‘Africa problem’ has indeed altered the trajectory of international criminal justice. The Security Council’s deadlock on a possible Syria referral to the ICC is well known, but a more subtle fact has gone largely unnoticed. For nearly three years, South Sudan has been the site of indisputable war crimes and crimes against humanity, including warnings of an impending genocide, and yet the ICC is not even part of the discussion. A tiny nation with no powerful patrons, South Sudan would normally be a prime candidate for Security-Council mandated ICC intervention. However, the AU’s conflict with the Court has foreclosed that possibility entirely, and a hybrid court has emerged as the preferred justice option for all parties, including international NGOs who routinely support ICC intervention.

State Consent

To be sure, the ICC’s lack of universal membership cannot and should not be overcome with Security Council referrals. The ICC’s universality is ultimately a function of state consent – the Court will only be as strong as states let it be. If states refuse to join, withhold cooperation once they’ve joined, or exercise their sovereign prerogative to withdraw, the ICC is rendered impotent.

South Africa’s withdrawal from the ICC has generated the most controversy in the last few weeks, with commentators focusing on the symbolic significance of a major African state leaving, despite it being among the Court’s foremost champions until recently. As important as South Africa’s withdrawal is, it is the Burundi precedent where the real danger lies.

A taboo was shattered when President Nkurunziza and the Burundian Parliament opted to leave the ICC in mid-October. Rather than submitting to the Court’s (preliminary) scrutiny, a state party simply decided it was legitimate to ignore it altogether. Alex Whiting has pointed out that Burundi’s withdrawal does not necessarily change much in legal terms, yet the message it sends is unmistakable. Emboldened by the AU’s hostility toward the ICC, states parties may – and probably will – in the future simply withdraw whenever state agents are implicated in the commission of international crimes.

This was confirmed last week when Rodrigo Duterte, President of the Philippines, indicated he too would consider leaving the ICC. Just weeks earlier the ICC Prosecutor warned that extrajudicial killings committed on Duterte’s watch ‘may fall under [her] jurisdiction’. Other states parties, including some that have benefited greatly from ICC intervention (e.g. Uganda), have openly mooted the possibility of withdrawing. Most tellingly, there are indications that state parties who continue to officially support the ICC, even at last week’s ASP plenary, have clandestinely developed plans to withdraw if the Prosecutor turns against their state agents (e.g. Democratic Republic of Congo).

The withdrawal taboo has been shattered and there is no going back to the pre-withdrawal status quo. Although speculation has mounted in recent days that South Africa may withdraw its withdrawal, this misses the point. States, including ICC states parties, know that they can flout the ICC’s authority with little or no consequences… that is, unless the ASP and the Security Council manage to radically reset the terms of the ICC-Africa debate.

Overcoming the Status Quo

Notwithstanding Darryl Robinson’s optimistic portrayal of the current ASP (with which I mostly agree), the fact remains that today’s debates are reactive rather than pro-active. Seeking to accommodate African states’ complaints, friendly states are bending over backward to find compromises that can appease African state interests in the short term. Instead of developing promising long-term strategies, NGOs are scrambling rhetorical (and probably illusory) support to prevent a mass pan-African withdrawal in the immediate future.

Yet none of this tackles the real problem, of which withdrawal is just a symptom. As the ICC begins to take on powerful state interests in Georgia (Russia), Afghanistan (United States), Palestine (Israel) and Iraq (United Kingdom), the conundrum of state consent, in particular the ICC’s total dependence on state cooperation, will only get worse. Largely missing from the debates at the ASP and in academic commentary is how ICC supporters – friendly states and NGOs alike – hope to overcome the Court’s total reliance on states for evidence, which was so brutally exposed by the collapse of the Kenya cases.

In the first twelve years, the ICC has managed to prosecute only African non-state actors (five Congolese militiamen and a Malian jihadist) and a deposed state actor (Laurent Gbagbo). This convenient African status quo cannot last forever. The ICC’s vocation is to pursue international crimes, and it is fanciful to suggest that only non-state actors and former state agents are capable of committing such crimes. Called derisively the International Rebel Court by its critics, the ICC has yet to successfully apprehend a single state actor over the objections of his or her government. Burundi has set a worrying precedent in that regard, and the danger is that other African and non-African states parties will follow suit whenever they feel threatened.

The real challenge at next year’s ASP and in years to come is what European Union and South American states, the only two consolidated regional blocks of support for the ICC, will do when their Western allies – the United States, Israel, and the United Kingdom – are pressed to cooperate with the Court (no one expects Russia to cooperate, despite creative legal reasoning to the contrary). Unlike Burundi, Western democracies profess a commitment to the rule of law, which can be leveraged against them in discussions about justice. But will this pressure to cooperate produce anything positive when applied to Western democracies?

Conclusion

The easy answer of course is that the United States and Israel are not even ICC states parties, so they do not have any legal obligation to cooperate (although you certainly wouldn’t know it judging by the number of state and non-state representatives they send to the ASP each year).

Simple. Yet it misses the point of the whole Africa-ICC debate. If the withdrawal crisis teaches us anything, it is that African states – be it for political, rhetorical or Machiavellian reasons – will no longer tolerate the ICC’s uneven application of international justice. Withdrawal is now a viable alternative, whenever and wherever. That taboo has already been shattered.

How ICC supporters, specifically EU members and a few friendly (but powerful) states in other regions, hope to overcome the Court’s reliance on state consent, the structural weakness at the heart of the ICC Statute, remains unknown. Universality is not an option in the short- or medium-term, and yet there is no going back to the ICC African status quo either. The ICC’s problems have only just begun.