Since the inception of the International Criminal Court more than a decade ago, only Africans have been brought to trial.
That fact has led to frequent accusations of bias by the first permanent tribunal set up to prosecute the worst atrocities on earth — war crimes, genocide and crimes against humanity.
Last week, South Africa and Burundi announced that they were leaving the ICC, raising concern among human rights defenders about a potential exodus from the embattled court.
Burundi’s decision was widely viewed as an attempt by the country’s leaders to avoid scrutiny of more than a year of deadly political violence that erupted after President Pierre Nkurunziza decided to seek a third term.
But the withdrawal of South Africa, a leader on the continent and a strong proponent of international justice, could be more damaging.
“It is quite plausible that other states will quickly follow suit,” said Kamari Clarke, a legal scholar at Carleton University in Ottawa who has studied the court’s activities in Africa.
The ICC, which began hearing cases at The Hague in the Netherlands in 2002, was established as a court of last resort, to prosecute grave abuses when countries would not or could not act against those responsible.
Why has there been so much focus on Africa?
The ICC’s jurisdiction is limited: It can investigate crimes that took place in or were committed by nationals of the countries that ratified its founding treaty, the 1998 Rome Statute. It cannot get involved anywhere else without a referral from the United Nations Security Council.
Of the 10 preliminary examinations that have proceeded to full investigations, nine have involved conflicts in Africa. But the court’s lead prosecutor, Fatou Bensouda, points out that in six of the cases, the ICC intervened at the request of the governments involved.
African leaders were among the court’s strongest advocates when it was created, in part because of the horrific crimes perpetrated during the 1994 Rwanda genocide. The region accounts for 34 of the 124 countries that ratified the Rome Statute.
The ICC has launched preliminary examinations of a number of countries outside Africa, including Afghanistan and Colombia. But few nations in the Middle East or Asia have joined the court.
The Security Council has used its authority to refer some nonmember states, such as Libya and Sudan. But major powers, including the United States, Russia and China, are beyond the court’s reach because they have veto power over the council’s decisions.
Russia and China used their vetoes to prevent the referral of the war in Syria, which many countries believe warrants investigation by the court.
“The fundamental problem is that the court is operating in a world that is unequal politically and economically,” said James Goldston, a former attorney in the ICC prosecutor’s office who now serves as executive director of the Open Society Justice Initiative.
“That’s not a problem which the court, unfortunately, is capable of remedying, but that’s something for which the court gets a lot of blame.”
Why did South Africa and Burundi decide to leave the court?
Support for the ICC among Africa’s leaders has declined since the indictment of top politicians, including sitting heads of state in Kenya and Sudan. Some have labeled the ICC an instrument of neocolonialism, noting that countries that did not ratify the Rome Statute are among those exerting the greatest pressure on African leaders to submit to the court.
South Africa expressed its displeasure last year when it was accused of ignoring its treaty obligations because it allowed Sudan’s President Omar Bashir — accused of genocide and other crimes in his country’s Darfur region — to attend an African Union summit without arresting him.
South African officials contend that the Rome Statute is at odds with their efforts to promote a peaceful resolution of conflicts on the continent, which can include hosting adversaries. The decision to leave will be put to a vote in the country’s parliament, but is expected to win approval.
Burundi’s leaders were furious about a United Nations-backed report last month that found evidence of abuses there that might in some instances be considered crimes against humanity.
The report documented 564 summary killings since antigovernment protests broke out in April 2015, as well as cases of torture, sexual assault and mutilations. Although opposition groups were responsible for some of the violence, the report said, “the responsibility for the vast majority of these violations should be laid at the door of the government.”
Burundi’s parliament voted overwhelmingly this month to leave the court, which placed the country under examination in April.
Legal experts note, however, that the ICC won’t lose jurisdiction there until a year after the U.N. secretary-general receives formal notification of Burundi’s intention to withdraw.
“If the effort is to secure impunity for crimes that have taken place until now, it won’t be effective,” Goldston said. “That may be a helpful wakeup call to any other governments that are thinking about withdrawing from the statute for the purposes of removing legal accountability from the table.”
Will these withdrawals hurt the court?
Attempts to stage a mass pullout from the ICC were defeated at an African Union summit in July, but the decisions by South Africa and Burundi could inspire other countries to leave on their own.
Kenya’s parliament voted to withdraw in 2013 after its president, Uhuru Kenyatta, was indicted on charges of orchestrating a wave of post-2007 election violence that left more than 1,000 people dead. Prosecutors blamed witness tampering and obstruction by Kenya’s government for the collapse of that case.
Namibia’s Cabinet this year also resolved to leave the court, although, like Kenya, it has taken no concrete steps to do so.
Still, the court has defenders on the continent, including Botswana, Senegal and Tunisia.
Kofi Annan, the former U.N. secretary-general from Ghana, takes issue with the notion that Africa has been singled out. In an interview with the Financial Times in June, he noted that former Serbian President Slobodan Milosevic and others were convicted of war crimes at a special tribunal set up for the former Yugoslavia before there was a permanent court to try such cases.
Too often, Annan said, the emphasis has been on protecting Africa’s leaders. “But who speaks for the little guy?”
The planned withdrawals could provide an incentive for the court to give serious consideration to at least some of the reforms currently under discussion at the African Union, Clarke said.
Among the most controversial are proposals to provide legal immunity to serving heads of state, and to allow the U.N. General Assembly to vote on whether to refer the most heinous crimes to the ICC if the Security Council cannot reach a decision.
Although the departure of more countries could hurt the credibility of the court, some of its defenders suggest that it might be better off without them.
“It’s a very sad day for international justice that a nation that was perceived to be progressive, like South Africa, would take such a drastic policy direction,” said Samwel Mohochi, executive director of the International Commission of Jurists in Kenya.
“But if there are states that are hell-bent on withdrawing, they should withdraw rather than remaining signatories and continuing to undermine the court from within.”
Zavis reported from Los Angeles and Dixon from South Africa.