Burundi has decided to quit the International Criminal Court, the first country to do so. Like other African countries who at one time toyed with the idea of leaving The Hague-based tribunal, Burundi has accused the ICC of bias against the continent. It went one step further, saying the ICC is an instrument used by Western powers to effect regime-changes in Africa. Gambia, while announcing its decision to quit last year (withdrawn by the new government in February), said the ICC was “persecuting and humiliating the people of color, especially Africans”. The fact that the tribunal has not moved against former British Prime Minister Tony Blair for his role in the Iraq war was specifically cited by Gambia as another reason to severe its connections with the organization. “The ICC is in fact an international Caucasian court,” said Sheriff Bojang, the country’s information minister.
The ICC has 123 member countries, 34 of them African. Nobody expects the decision of Burundi to trigger a mass African exodus from the tribunal, but there are worrying signs. Within weeks of last year’s parliamentary vote in Burundi to leave the ICC, South Africa, a founding member, announced it too would quit, though the decision was revoked in March. Kenya and Uganda have threatened to leave, but not acted on it yet. More worrying is the fact that African Union itself is persuading its member nations to withdraw from the court.
Some African leaders may be using “the bias against the continent” argument to escape trial and punishment for gross human rights violations. But Africa is not the only place where repressive policies and murderous activities take place. The armies of many Western nations are getting up to all sorts of bad things around the globe. But still the face of ICC defendants remains exclusively black.
The court has received more than 9,000 complaints about alleged crimes in more than 139 countries. But of the 10 cases being investigated by the court, nine involve African countries, including all three trials. So far, ICC arrest warrants have only been issued for Africans. Georgia is the only country outside Africa facing such an investigation. Prosecuted figures include the current president and vice president of Kenya as well as the president of Sudan.
ICC says its failure to try heads of state/leaders of any of the permanent members of the UN Security Council or even launch preliminary investigations against them for acts of impunity has nothing to do with unfairness or prejudice. We can only investigate, says the ICC, cases involving genocide, war crimes and crimes against humanity; other serious global transgressions fall outside our remit. Then there is the lack of jurisdiction over states that haven’t ratified the Rome Statute, the treaty founding the ICC. The list includes US and Israel.
As for Tony Blair, the ICC says, it can’t put him on trial because decisions on launching a war are outside its powers. The tribunal investigates only atrocities that take place on the battlefield. This creates the ridiculous prospect of individual troops being hounded while leaders who order invasion of other countries evade justice. All this means there was something grievously wrong with the way the ICC was conceived and constituted.
This is what creates the perception that the ICC has a built-in prejudice against certain countries. Appointing a prosecutor from one of these countries (Fatou Bensouda, the current chief prosecutor, is a native of Gambia) is not going to solve the crisis of credibility the ICC faces.
It is said that the US did not ratify the Rome Statute because it did not want its foreign troops to face prosecution or compromise its sovereignty in matters of justice. A justifiable fear, considering what happened in Iraq and other places. But a fundamental principle in the legal sphere, particularly in the area pertaining to crime, is that of equality before the law.
