The Rome Statute created the International Criminal Court to prosecute people for committing crimes viewed as serious by the international community. That includes genocide, crimes against humanity, war crimes, and crimes of aggression. More than half of the world's countries are signatories to the Rome Statute, and 34 are from Africa. Controversy has arisen because of the ICC's focus on prosecuting people in Africa to the virtual exclusion of others.
Until January 2016, all of the situations the ICC investigated occurred in Africa. The focus on Africa led many, including South Africa, to believe the ICC unfairly targets them. They feel the ICC prosecutes Africans not to hold people accountable for the crimes they commit, but to further the political agendas of powerful western countries. In 2015, South Africa refused to execute the ICC's arrest warrant for President Omar al-Bashir of Sudan, challenged the ICC's authority, and made plans to withdraw from the Rome Statute.
This paper will argue that South Africa ignored the International Criminal Court's orders in 2015 and made plans to withdraw from the Rome Statute because 1) The indictments of the leaders of Sudan, Libya, and Kenya violated international law regarding immunity for heads of state; 2) The ICC is a political tool used to target African people; 3) The United States colludes with its European allies to control the ICC despite not being a signatory to the Rome Statute; 4) The ICC prosecutes people in Africa while ignoring similar crimes committed by others; and 5) The history of racism and colonialism makes Africans skeptical of non-Africans.
History of the International Criminal Court
Although many people in Africa believe the ICC is biased against them, African people played an important role in the ICC's creation. James Crawford (2008) discussed the history of the court. He said the idea for an international criminal tribunal dates back to 1872 (678). More recently, the issue arose in 1953 with the involvement of the United Nations. No such tribunal was formed because of disagreements over the definition of aggression, along with concerns related to the Cold War. Trinidad and Tobago raised the issue again in 1989, and it was from those efforts that a process began, leading to the Rome Statute being created in 1998 (679).
Rowland J.V. Cole (2013) noted that African countries were instrumental in forming the ICC. They had the highest regional representation in the world among countries that signed the Rome Statute (671). The Southern African Development Community (SADC), of which South Africa is a member, is a regional organization in Africa. Sivu Maqungo said that South Africa and four other SADC countries joined others in an attempt to create the ICC in 1993. Cole said the SADC members devised 10 principles in September 1997 that were considered when forming the ICC. In February 1998, 25 African countries participated in a conference in Senegal where the Dakar Declaration was adopted. That declaration sought to ensure the independence of the ICC, and committed the countries to establishing the court (673).
Maqungo revealed that South Africa was a member of the Drafting Committee of the Rome Conference, and worked with others to form part of the Rome Statute. South Africa led the SADC in July 1998 when the organization approved a draft of the treaty. The principle of complementarity, as opposed to giving the court primary jurisdiction, was supported to recognize the sovereignty of countries. South Africa also wanted the Rome Statute to include a provision recognizing reconciliation and amnesty efforts. Provisions adopting complementarity and amnesty were included because of its efforts.
The Rome Statute entered into force on July 1, 2002. Although intended to be an independent organization, it is funded not only by its members but by other individuals and entities ("ICC--About the Court"). The ICC was to be a court of last resort that would only intervene if a national legal system either refused or was unwilling to prosecute. As of April 1, 2015, 123 countries have signed the Rome Statute ("ICC--ICC at a glance").
The ICC is a neoliberal institution. After numerous instances of extreme human rights violations and atrocities being committed throughout the world during the 20th century, different countries joined together to create the ICC. Regardless of where on earth the atrocities occurred, other countries were affected directly or indirectly, with some being ridiculed for their failure to act to protect vulnerable people. The world had become interdependent.
By creating the ICC, countries intended to promote their shared interest in maintaining international peace and security. Knowing that the violation of human rights in other countries could have global ramifications, they realized that it was to their benefit for those responsible to be held accountable. The interdependence between countries made them reliant upon one another for the maintenance of international security. The ICC could thus help all signatories to the Rome Statute achieve their shared goal of international peace and security, by prosecuting violators of human rights. However, South Africa would feel betrayed by the direction of the court, which would lead it to abandon the ICC as it felt the court had lost legitimacy.
African People: Targeted by the International Criminal Court
Article 13 of the Rome Statute sets three conditions under which the ICC can review a situation: a referral to its prosecutor by either a party to the treaty, the Security Council, or when the prosecutor chooses to initiate an investigation (United Nations Diplomatic Conference 1998). The ICC has investigated 10 situations covering 23 cases. Except for one investigation beginning in January 2016, all have involved African defendants. Sudan and Libya were referred by the Security Council, and Kenya was initiated by the ICC prosecutor ("Situations and Cases").
As a neoliberal institution, the ICC was formed through a cooperative effort to benefit signatories to the Rome Statute. That effort failed because the ICC focused on Africa while ignoring crimes committed by powerful western countries who manipulate it through the Security Council. The AU speaks on behalf of all African countries, and has been outspoken in opposing the ICC. It urged its members to stop cooperating with the ICC. The conflict it and South Africa have with the ICC began when the ICC issued arrest warrants for al-Bashir for crimes against humanity, war crimes, and genocide. This situation would show how the ICC stopped benefitting its members, and took direction from non-signatories to its founding treaty.
Sudan and the ICC
In the mid-2000's, violence was rampant in the Darfur region of Sudan. Media outlets throughout the world, along with celebrities who wanted to bring attention to the situation, portrayed the conflict as the result of the Arab government of Sudan enacting a policy of genocide against the Black African people of Darfur. The inference was that the violence was a manifestation of racism involving Black and White people. However, that was inaccurate and is a simplified explanation for what occurred.
Linda Fasulo (2015) said the violence resulted from a "complicated internal conflict involving the central government and rebel militias" that "produced death, misery, and destruction throughout an area larger than France" (130). In an April 23, 2006 Washington Post article, Emily Wax dispelled the notion that the situation in Darfur was the result of racism. Everyone involved was Black and Muslim. Wax said that Mahjoub Mohamed Saleh, a Sudanese Reporter, recalled the surprise of how Black Americans visiting Darfur thought there were no Arabs in the region because everyone was Black. Ignorance regarding what constitutes culture and ethnicity is important because of the role it plays in how inaccurately conflicts are viewed internationally. That is a reason why South Africa has concerns with how the ICC operates.
According to Wax, the conflict in Darfur involved an insurgency rooted in a rivalry between alBashir and an Islamic cleric, Hassan al-Turabi. Both men are political rivals, and al-Turabi is viewed as an extremist. He called Osama bin Laden a hero before the al-Qaeda attacks of September 11, 2001, and supported one of Darfur's main rebel groups. Wax recalled Sudanese human rights lawyer Ghazi Suleiman explaining that "Darfur is simply the battlefield for a power struggle over Khartoum," the capital of Sudan.
In September 2004, Secretary of State Colin Powell testified before the Senate Foreign Relations Committee, and he called the situation in Darfur genocide. Wax felt the declaration was unproductive. She said it emboldened the rebels in Darfur. They refused to negotiate with the Sudanese government, and they expected the United States to support them. The Sudanese government used the declaration as evidence of America's bias against Islam and Arabs.
Powell's declaration became the basis for the ICC prosecuting al-Bashir. He explained that under Article VIII of the Genocide Convention, parties to the treaty could ask the UN to act against genocide. Since the United States signed the treaty, Powell said the United States would seek authorization for a UN investigation from the Security Council (Powell 2004).
Six months after Powell's speech, Security Council resolution 1593 referred the situation in Darfur to the ICC. Of the five permanent members of the Security Council, all voted for the resolution except the United States and China ("Security Council resolution 1593" 2005). Neither are signatories to the Rome Statute. Since Sudan is also a non-signatory, the United States and China should have vetoed the resolution, as both had a vested interest in not seeing the ICC investigate a non-signatory. The ICC would eventually indict al-Bashir.
Despite instigating al-Bashir's...