South Africa’s recent announcement that it will withdraw from the International Criminal Court and the Rome Statute has cast light on the discriminatory nature of the ICC, and the imbalance of power governing it. A number of African countries have followed or plan to follow suit.

Arguments have arisen around the ICC’s willingness to convict African leaders, over its willingness to hold the dominant global powers accountable for human rights abuses. Certainly, the court has indicted 39 people and all of them are African. Apart from convicting Bosnian Serb leaders, has not held one non-African official accountable. However this does not change the fact that the exit of countries from the ICC will encourage a global climate of impunity.

Now, the lead prosecutor of the ICC Fatou Bensouda released a statement supposedly in reaction to a wave of African countries leaving the ICC – claiming that her office has “reasonable basis to believe” that US forces committed war crimes in Afghanistan between 2003 and 2004.

However, it is important to examine the composition and laws governing the ICC, to understand that these statements hold little promise of ever having any effect, especially when it comes to holding the major powers accountable.

In an article written for the Daily Maverick in South Africa, Dr Oscar van Heerden, argues in favour of South Africa’s exit, and makes some key points that are worth highlighting here:

  • The ICC operates in an environment where global institutions like the UN Security Council and Bretton Woods institutions like the International Monetary Fund and the World Bank are configured in a way to ensure the dominance of the US and its European allies.
  • The United States is not a signatory to the Rome Statute, nor is China, Russia, Israel, India or Pakistan among others – although there are 103 countries that are signatories.
  • Crucially, there is a caveat in the Rome Statute that indicates that the five permanent members of the UN Security Council can tell the ICC who to charge. These include the US, Russia and China, who are themselves not even signatories to the Rome Statute.
  • The ICC has not condemned a number of Western-led military ventures which have had dire consequences for civilian populations. These include the US invasion of Libya and the US-UK invasion Iraq based on torture “evidence” and many other instances of aggression including French aggression in Africa and Russia’s in the Ukraine.

The long-term effects of post World War II history has resulted in an imbalance of power in the world that favours the UN veto powers, and the ICC acts out and even facilitates this power imbalance.

Towards a world of impunity

African countries have reacted to this in nothing less than a mass walk-out. Just a week before South Africa’s announcement, Burundi gave notice that it would also withdraw from the ICC. Namibia has also announced its intention to withdraw, as has Gambia. Kenya is expected to follow suit soon.

These walk-outs are not based on principle alone, but in fact are a reaction to the investigation or pending investigation of some of these governments for human rights abuses – Burundi for extrajudicial killings and Kenya, for the alleged role of President Kenyatta in horrific post election violence in 2007-8, to name two. This, more than anything, is an example of how a culture of impunity can quickly spread.

The ICC was founded in the wake of the Nuremburg Trials, to hold accountable state officials who committed war crimes and human rights violations, including, most centrally, the act of international aggression which Nuremburg judges called the “the supreme international crime”, since it gives rise to all other war crimes.

It is the reality that UN veto powers including the United States and Russia, by the sheer numbers of civilians affected by their military adventures, are the chief international aggressors in the world today. Their actions, primarily against ordinary Muslims, are facilitated by the propaganda and Islamophobia conjured by the global War on Terror. And yet they remain unaccountable under the ICC, which does not acknowledge War on Terror duplicity.

The case of Ahmed Al Faqi recently illustrates this duplicity. The definition of “war crimes” was extended in his case, to secure a conviction of nine years for destroying shrines in Mali, whereas it has taken the ICC 15 years to acknowledge the “possible war crimes” of the United States in Afghanistan under George W. Bush.

The global ‘War on Terror’ with its legalised kidnappings (blithely called ‘renditions’), torture and extrajudicial killings done in the name of countering “terrorism” has netted hundreds and continues to affect the lives of hundreds of thousands of people.

The United States has also made concerted efforts to protect any of their citizens – read military officials or servicemen – from being held accountable by the ICC by cajoling countries into signing Bilateral Immunity Agreements (BIA), which promise never to bring a US citizen stationed in their country, before the ICC.  

Such flouting of international legal norms and treaties sets a low moral standard for all. Until crimes perpetrated in the name of the War on Terror are examined and the perpetrators held accountable, this ever lower moral standard will continue to toxify the planet.

Once the first countries to sign up to the ICC, African countries are now the most disillusioned with its bias. If this does not cause a re-evaluation of the ICC and its effectiveness,  their walk-outs could set the stage for yet greater global impunity, furthered – in Africa itself – by the ‘War on Terror’ and its injustices.

Unless international justice upheld, state impunity will continue to increase, perpetrators will have freer reign, and it will be up to ordinary citizens and civil society to stand up for justice in the face of tyranny.


(CC image courtesy of United Nation Photo on Flickr)

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