The Near End of the ICC?

The future of the International Criminal Court (ICC) may be at risk. The announcement that three countries — Burundi, South Africa, and Gambia — would be leaving is a big blow to the legitimacy of the court. All three countries indicated they took the decision to withdraw because they find the court to be a neocolonial tool that often targets African countries more so than others, especially western countries. This isn’t the first time a state member of the court threatened to withdraw. In 2013, the Kenyan parliament voted to leave the ICC but never formally left. Now, there is fear that the latest departure could trigger a ripple effect among African nations, further delegitimizing the institution.

Burundi was the first to make the announcement, but it is South Africa that is causing panic among the international community. As one of the founding members of the ICC, South Africa’s departure sends a message to other members and could, consequently, encourage others to follow suit — like Gambia that made the announcement a week later. The withdrawal of three countries in a row is cause for panic as it could lead to a domino effect in which other countries might want to leave, too. And if more countries decide to leave, then it could leave the court in a state of limbo, leading to the possible demise of the court.

This month, Burundi and South Africa gave the court a formal notification of their intent to leave, while Gambia has not officially turned in a formal note of departure. Of particular notice is that Burundi is under investigation by the ICC while Gambia has never been under investigation. Burundi is being tried for crimes against humanity in which the government of Burundi is said to be complicit. On the other hand, South Africa isn’t under investigation either, but it’s under scrutiny for failing to arrest Omar Al Bashir, who is wanted for alleged crimes in Darfur, when he visited the country back in 2015.

The ICC, located in The Hague, was established in 2002 when 60 states ratified the Rome Statute — a non-binding treaty that gives the court jurisdiction over four different types of crime committed on or after July 1st, 2002. These include genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC, often referred to as the court of “last resort”, is only used when national governments can’t or won’t prosecute in their own courts.

There are many flaws that make the court unsuccessful. First off, because there are only 124 state members, it’s often difficult to try individuals residing in countries that aren’t part of the ICC. In fact, criminals often knowingly flee to these safe havens to avoid prosecution, making it difficult to arrest and convict them. Second, major powers such as the U.S., Russia, and China aren’t part of the court, making the court look weak. The U.S. failed to ratify the statute because it found many flaws. Third, since the Rome Statute is non-binding, the ICC has no way to enforce states to abide by it, making it easy for states to ignore any requests made by the court. These flaws, unfortunately, can’t be fixed if the international community is unwilling to correct them.

If other members follow suit to leave, then what would be the point of having the court if only a select few would be a part of it? World order can only be slightly possible if all members of the international community are willing to contribute and hold each other accountable, without any reservations. But since this doesn’t seem likely, then it might be best to either leave the court with its many flaws or just close it down completely. The future of the ICC is uncertain, and only time will tell if it continues to exist, if it will be reformed, or if the ICC will go down in history as a failed experiment.

Courtesy of Vincent van Zeijst, © 2011

Courtesy of Vincent van Zeijst, © 2011

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