By Dr Rens Willems.
Burundi, South Africa and Gambia have recently announced their withdrawal from the International Criminal Court (ICC) in The Hague. Kenya, Namibia and Uganda are also deliberating a withdrawal. This article argues that it is through action, not withdrawal, that African countries can truly promote justice and human rights in Africa.
Critiques underlying the withdrawal from the ICC are that the Court unfairly targets African countries and that it serves as a neo-colonial tool for oppression of Africa by the West. Harsh accusations, which are fueled by the fact that most investigations of the Court are on the African continent, and all convicted or currently on trial are African nationals.
There are some arguments against these critiques. The majority of these cases were referred to the ICC by the governments of these countries themselves. And sadly, many countries outside of Africa that are involved in war have not ratified the Rome Statute, and referral by the UN Security Council is blocked in cases where its permanent members are involved.
These rational counter-arguments notwithstanding, the critiques on the ICC should not simply be brushed aside as politically expedient remarks by African politicians. Serious efforts should be made to re-engage critical countries with the Court, including a serious reflection on the Court’s functioning and how it can better integrate its vision of justice with local practices.
The criticisms and withdrawal should furthermore be considered as an opportunity to promote justice and human rights in Africa. Even where the ICC has jurisdiction, it is a court of last resort. A positive approach to the critiques on the ICC would be to promote alternative judicial processes dealing with war crimes and crimes against humanity at national and regional levels. African leaders have the opportunity to take matters in their own hands and work towards the promotion of human rights for people living on the African continent.
The African Union and its member countries have a responsibility to act. One promising step in this direction was the special court set up by the African Union to try former president of Chad Hissène Habré. Another opportunity has presented itself in South Sudan. In August 2015, the warring parties in South Sudan signed the Agreement for the Resolution of the Crisis in South Sudan (ARCISS). Chapter V of the ARCISS details the parties’ plans for combating impunity and addressing the legacies of past conflicts, including the establishment of a Hybrid Court for South Sudan (HCSS) to bring cases against individuals bearing responsibility for genocide, war crimes, crimes against humanity and sexual violence and gender-based crimes. The Agreement mandated the African Union Commission (AUC) to establish the HCSS, and provide guidelines to regulate its functioning. In September 2015, the African Union Peace and Security Council (AUPSC) authorized the Chairperson of the AUC to take all necessary steps towards the establishment of the HCSS.
The AUC should take action and continue with the establishment of the HCSS. Because it is through action that African countries can promote their vision on and future of justice and human rights on the continent.
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About the author:
Dr Rens Willems. Research Fellow and Programme Leader Peace and Conflict Studies, University for Peace (UPEACE) Centre The Hague.[1]
[1] UPEACE recently completed a 2-year research project on transitional justice in South Sudan together with SSLS and PAX. More information can be found here: http://www.upeace.nl/index.php?page=Thematic_Programmes-Thematic_Programmes-&pid=154&id=1&projid=39
