An alternative to the ICC is to strengthen Africa’s own institutions. Justice is desired as evidenced by the conviction of Chad’s former leader Hissene Habre by a court in Senegal this year. But will politics always interfere with the idea of regional courts? The expertise and technical talent exists on the continent, but the promise to strengthen regional courts has moved at a snail’s pace.
The African court on Human and People’s Rights was established under the auspices of the African Union in 2009 but is mired in bureaucracy, delivering just one major judgement in 2009. Shadrack Gutto from South Africa’s Institute for African Renaissance Studies believes it is time for reform but the AU should consider a system working in parallel to the ICC, not dismantling it altogether. According to Gutto: “We have a lot of corporate crimes being committed in Africa and yet they are not being dealt with by the International Criminal Court. We could set up a mechanism to deal with this. There are weaknesses at the ICC for sure but that does not mean we should allow ourselves to just simply move out.” But that opinion would have to come from a leader outside of the African continent to gain acceptance or any type of support.
It is not felt that South Africa’s withdrawal from the ICC will happen anytime soon. South Africa joined the ICC in 1998 having just emerged from the scourge of apartheid. South Africans were victims of gross human rights violations and hoped the rest of the world would join the ICC. But some of the most powerful countries did not follow. The chairman of the ANC’s commission on international relations, Obed Bapela, stated the ICC has “lost direction.”
The move away from the ICC comes after the South African government was criticized for allowing Sudan’s President Omar al-Bashir leave the country in spite of an ICC arrest warrant for alleged war crimes in Darfur. Bashir denies the allegations claiming they are politically motivated. Mr. Bapela insisted South Africans wanted to hear about the victims of Darfu. He says human rights matter but people want a fair system.
South African government officials have referred to Bashir as “the Hitler of Africa” and South African troops have been in Durfur as part of the UN-AU peacekeeping force, seeing for themselves the destruction of Sudan’s western region. Some feel the move has less to do with South Africa’s support for President Bashir and more to do with the AU, with repeated complaints that the ICC treats Africans and Africa unfairly. The ANC would prefer the AU to pull out as continental block.
Whatever the reasons may be, the move cannot happen without the approval of parliament. If the motion passed in parliament, the president would then have to endorse the decision. Although the Kenya parliament voted for the country to withdraw in 2013, President Uhuru Kenyatta did not endorse the withdrawal and so the East African nation remains an ICC member. But the South African government is serious, with the Minister for International Relations claiming the matter in on the agenda for the next meeting of ICC members at The Hague in November. According to a senior researcher at the Institute for Security Studies and a legal expert on international criminal law, if the rule of a law is followed to the letter, it would take South Africa at least a year to fully withdraw. During this period, South Africa would remain a “state party to the Rome Statue.” However, according to Mr. Bapela, South Africa’s “walk-out” would not mean the ICC could not be reconstructed “once it collapses.” The process could even lead to the proper establishment of an African Court of Justice, which the AU has been struggling to get off the ground in order to try those accused of human rights violations in Africa.