Prioritizing Regional over International Allegiance in the African Union

In October 2016, within a week, the Burundian and South African governments announced that they would be withdrawing their membership from the International Criminal Court (ICC). Because of South Africa’s role in the establishment of the Court, and the lack of prosecution of their nationals before the Court, their decision to withdraw has had particular weight, weakening the Court, both practically and symbolically. The allegiance of many nations in the African Union to one another has seemingly trumped their support for the ICC. If the Court does not address their concerns, it will seriously suffer.

The decision by Burundi and South Africa to withdraw from the Court is a response to two conditions: the court’s perceived African bias and its prosecution of heads of state. Since its inception, all but one of the Court’s investigations has involved an African nation, and all those indicted by the ICC have been African. It is important to note that the majority of these cases came before the Court at the request of the country in question. However, the track record of the Court does suggest a specific focus on, and possibly targeting of, African nations, and an unwillingness, or inability, to prosecute violations of international law committed in other continents.

Additionally, the domestic policy and regional politics of the region complicate African states’ compliance with the ICC. The Court indicted President Al-Bashir of Sudan in 2009, and again in 2010 for war crimes and genocide. In June 2015, Bashir visited South Africa for an African Union summit, at which Zimbabwe’s President Mugabe urged African states to withdraw from the Court. While under the Rome Statute, states parties are legally obliged to arrest those indicted by the Court, South African domestic law protects the immunity of heads of state. The Southern Africa Litigation Centre filed an urgent application requesting the overturn of the immunity protection. This resulted in Judge Hans Fabricius of South Africa’s high court issuing an interim order barring Bashir from leaving the country. The government ignored the order, and Bashir left the country without consequence. South Africa’s unwillingness to arrest Bashir was strongly criticized by the ICC, the UN, and the US Department of State. However, the complexities of the regional politics complicate South Africa’s decision-making. Prosecuting a sitting head of state has implications for a nation that may take precedent over allegiance to an international organization. With direct political interests at stake, including ongoing political and economic relationships with regional countries, prosecuting heads of state is unikely.

The potential exodus of African states following South Africa’s decision has led the African Union to publish a Withdrawal Strategy Document in January 2017. This document, somewhat falsely named, outlined requests for reform of the Court. Specifically, it lists the objectives of ensuring fairness and transparency, instituting legal and administrative reforms, enhancing regionalization, and ensuring the sovereignty of Member States. The document is nonbinding, and a number of states in the African Union oppose it, including, most actively, Senegal, Nigeria, the Republic of Congo and Cape Verde. However, at a minimum, the adoption of this document represents a possible regional backlash to the Court and the need for the Court to examine the validity of the complaints of its Members States.

In late February 2017, the High Court in Pretoria ruled that the South African withdrawal from the ICC was unconstitutional. The holding established that the government must consider the position of parliament, given its democratic legitimacy, when making decisions of such magnitude. While seen as a victory for proponents of the court and many human rights advocates, the decision does not ensure South Africa’s participation in the Court. In fact, Justice Minister Michael Masutha stated, “[t]he intention to withdraw still stands, as [withdrawing from the ICC] is a policy decision of the executive.” As of early March, the South African government decided to reverse its decision to leave the Court, though it is unclear if they will eventually follow official protocol at a later date.

South Africa’s decision to leave the Court, and the consequent ruling of unconstitutionality, has serious implications for the regional dynamics regarding the Court. South Africa is a founding member of the Court, and also an important regional political player. Their voiced disapproval, even by suggesting a move to leave the Court, sends a strong message to other nations about the benefits of being a Member State. However, there were a number of countries that responded to South Africa’s decision to withdrawal with strong support for the Court. The decision of the unconstitutionality of South Africa’s decision, though, is crucial, in that it sends an equally strong message of the difficulty, and significance, of withdrawal from the Court. It is therefore unlikely that a large regional exodus will occur, given the reaction to South Africa’s proposition. However, in the event that South Africa does eventually withdraw, it may serve as an impetus for the opportunity for other nations to do the same.