North Carolina Journal of International Law

Volume 43

The ICC is Bleeding African Nations

By: Zachary Lipschutz

South Africa has recently removed itself from the International Criminal Court (ICC).[1] Some African nations believe that the court is biased against them, as most of the cases that the Court hears come from Africa.[2] Additionally, some of the nations that have participating judges are not actually members of the ICC.[3] The author of Exit South Africa implies that South Africa may have left the ICC in order to escape prosecution from the Court[4] after South Africa chose not to arrest Omar al Bashir despite ICC pressure.[5] Along with South Africa, the nations of Burundi and Gambia have also left the ICC, demonstrating the discontent of some African nations with the Court.[6]

This decision by South Africa’s current president, Jacob Zuma, is notable because of its radical departure from the policies of former president and political activist, Nelson Mandela, which highly valued international criminal justice.[7] After witnessing apartheid first-hand, Mandela was particularly invested in the idea that there needed to be a concrete way to try actors who committed horrible crimes, perhaps, at least at one point, giving the ICC particular significance for South Africa.[8]

Although most cases heard by the ICC involve accusations against African countries, this fact alone does not support the contention that the ICC is biased. It seems that a few countries simply withdrawing from the ICC will not accomplish much, but if a mass exodus occurs at some point, this could actually be tragic. The ICC may not be perfect, but it is vital to have some sort of body which is able to hold actors accountable for gross human rights violations. It would make more sense for these countries to work on improving the ICC, or even create a new body, but still stay as members of the ICC while doing this. Nations have an inherent obligation to treat their citizens fairly, and to keep them safe, and once a nation withdraws from the ICC, it is then easier for the government of the nation to take advantage of their citizens. The rest of the world could act as a hindrance to this, as other nations may feel responsible for human rights violations that occur. So these citizens may be protected anyway, but it is best not to leave this to chance.

Because the ICC was the first permanent court of its type, it follows that it may have imperfections. This does not mean that countries should simply give up on it. This is because the ICC can hold tyrants accountable for human rights violations, and with fewer checks and balances, it would probably be more likely that tyrants could get away with such actions. This cannot and should not be tolerated by any nation on the global stage. Nations need to hold each other accountable for leaving the ICC, as well as cooperate to help eradicate human rights violations in their respective countries. This can be done by putting pressure on nations trying to leave, or by everyone cooperating to create a more powerful Court which could try human rights cases.

[1] Exit South Africa (Oct. 29, 2016), The Economist, [].

[2] See Karen Allen, Is this the end for the International Criminal Court?, BBC News (Oct.24, 2016), [].

[3] Id.

[4] Exit South Africa, supra note 1.

[5] Id.

[6] Abraham Joseph, Why Did South Africa, Burundi and Gambia Decide to Leave the International Criminal Court, The Wire (Jan. 11, 2016), [].

[7] Id.

[8] Exit South Africa, supra note 1.

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