Mercedeh Momeni – Water Canons and Withdrawals: What is Really Driving ICC Departures?

This is a guest post by Mercedeh Momeni.

Gambia, Burundi and South Africa have all announced their intent to withdraw from the International Criminal Court (ICC) recently, and Kenya also threatened to do the same last week. Indeed, in the past few years, a number of African leaders have been railing against the ICC for its prosecution of crimes committed on the continent. They claim the court is biased even though, in many instances, their own governments referred cases to the court, where the chief prosecutor and several judges are Africans. Further, the court has started preliminary examinations in Africa, Asia, the Middle-East (with the UK nationals as one of the possible targets) and South America. While not without its own difficulties, the ICC is reviled by the elites because it indicted two sitting presidents, Sudan’s Omar al Bashir and Kenya’s Uhuru Kenyatta.

In its formal Instrument of Withdrawal to the United Nations, the South African government asserted it had “found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC of obligations” under the Rome Statute, its founding treaty. In other words, the government invoked the old peace-versus-justice argument, which, incidentally, has been debunked by scholars. This pronouncement was, no doubt, in reference to the government’s refusal to arrest President al Bashir—which it was legally obliged to do as a state party to the Rome Statute—when he attended a high-level African Union meeting in South Africa last year. South African lawyers and activists were outraged and its supreme court recently ruled the government’s omission violated both domestic law and its international obligations.

Finally, Justice Minister Michael Masutha argued the requirement to arrest indicted heads of state would be tantamount “regime change” and contravenes legislation that grants them diplomatic immunity (without allowing that Bashir did not have to visit). But could there be a different reason behind the government’s controversial decision?

A Diversion from Domestic Difficulties?

The African National Congress (ANC) government is suffering from a series of high-level corruption scandals along with a faltering economy, chronic electricity, water shortages, and most significantly spiraling unemployment rates, especially among the youth. Of course, the long-standing disappointment with government promises of land reform and the Broad Based Black Economic Empowerment programs, both of which have failed to reach the vast majority of the populace, cannot go unmentioned.

During my August visit there, many cited these issues to explain the ruling ANC’s serious losses in this year’s municipal elections to the Democratic Alliance and the Economic Freedom Fighters (headed by a 36 and 34-year old, respectively). Unfortunately, approximately a dozen ANC candidates were murdered in the run-up to the elections, allegedly by members of their own party—further evidence of domestic problems for the ANC. As an additional challenge to the ANC, the opposition Democratic Alliance Tweeted: “We will today approach courts to have the notice of withdrawal to the #ICC set aside as unconstitutional, irrational & procedurally flawed.” They cited the ANC’s failure to consult other parties and alleged violation of the country’s Promotion of Administration of Justice Act.

Additional domestic challenges are as follows. Last month, the ANC’s Chief Whip called for the resignation of President Jacob Zuma (who continues to fight allegations of personal and professional misconduct) as well as the entire ANC leadership, including himself. As recently as two weeks ago, the police fired stun grenades and water cannons to disperse university students protesting outside parliament over tuition rates, a problem plaguing the government during the past several months. Clearly, the ANC is concerned about losing its long-held grip on power, before the next round of elections. So, at least by creating a media buzz and fodder for discussion for the more informed about its dealings with the ICC, the government could well be diverting some public attention from these challenges while it invokes a need to sue for peace.

South Africa is unlike other countries which have threatened to withdraw from the court’s jurisdiction in that it has long been a proponent of the court and never been under investigation by it. Burundi’s presidential-term-limit question led to election-related violence in 2015, leaving hundreds dead, and tens-of-thousands displaced. Its parliament voted to withdraw from the ICC in October, as its government is under investigation by the court for its role in these deaths and other human rights abuses. Gambia’s human rights record has frequently come under scrutiny, particularly the government’s decision this year to crack down on some political opponents. The ICC dismissed the indictments, without prejudice, against Kenya’s top two leaders for election related violence, because of the dwindling witness list. The court invited the prosecutor to present any evidence of witness tampering, which the prosecutor blamed for its inability to present full evidence, if/when it was able in order to reinstate the complaint. These three countries therefore, are dissimilar to South Africa. Although they too might benefit from an external distraction, they may appear more concerned about accountability issues in an international forum.

Furthermore, South Africa is a regional power carrying significant weight within the African Union. Its notice to withdraw from the Rome Statute comes at a time of improving relations between the court and African countries. So, why now? Will its impending departure have a domino effect? Analyst are speculating, and probably rightly so, that South Africa does not want to be seen as a late comer, if in fact there is going to be an exodus of African countries from the ICC. But this is only an ancillary benefit, while domestic issues seem to be the driver. It has been reported that the ICC—which must improve its ability to reach all human-rights-violating individuals, even in those situations traditionally protected by the UN Security Council permanent members—has asked both South Africa and Burundi to reconsider their withdrawal notices. In the case of South Africa the proverbial jury is still out on that question. We will have to wait and see.

Mercedeh Momeni is a former assistant United States attorney and an associate legal officer at the UN Criminal Tribunal for Rwanda. She is currently engaged in development work with a focus on democracy and governance. The views expressed herein are not necessarily those of her current or former employers.

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