It has been a disturbing couple of weeks.
On October 18, Burundi confirmed its Senate’s vote to withdraw from the Rome Statute. On October 19, South Africa deposited its notification of withdrawal. Wanting to stir the pot, on October 25, the Gambia announced its intention to withdraw as well.
South Africa, at least, provided reasons. That the ICC is but part of a global governance system in need of reform. Given the United Nations Security Council’s ability to refer situations to the ICC, the ICC’s claim to being unbiased and its credibility will remain in question as three of its five permanent members are not parties to the Rome Statute.
It also argued that it juggled competing international legal obligations — those under the Rome Statute demanding that it effect the ICC’s arrest warrant and those under both African and customary international law as concerns the immunities of Heads of State. Given its inability to resolve this tension diplomatically through consultation under the Rome Statute, it opted for withdrawal.
Reactions came fast and hard. South African civil society — including former Judge Richard Goldstone — accused the Executive of acting unconstitutionally, given the decision to withdraw wasn’t made by parliament and also immorally in a manner that disgraces former President Nelson Mandela’s legacy.
South Africa’s neighbour Botswana, while noting that withdrawal from the Rome Statue was a sovereign act, expressed regret, saying that South Africa’s concerns should’ve been dealt with through the Assembly of State Parties (ASP). Botswana went further to dissociate itself from all calls to withdraw from the Rome Statute.
Botswana’s sentiments were echoed by the (Senegalese) president of the ASP, as well as the European Union’s High Representative for Foreign Affairs.
Both Burundi and South Africa’s actions are obviously out of self-interest. Burundi is under preliminary examination by the ICC’s Office of the Prosecutor. South Africa is irritated by its own national court’s judgement finding the government culpable for not arresting the Sudanese President Omar al-Bashir while he was there.
Like all of Kenya’s bad behaviour in respect of the ICC, these actions are about evading accountability by using arguments of sovereignty and Heads of State immunities to do so.
Beyond the self-interest, however, these actions are also an expression of frustration with global power. South Africa is legitimately annoyed at the failure of the Security Council to reform.
Much of Africa is concerned by what it sees as the instrumentalisation of the ICC to effect “regime change” — Libya being a persistent sore point in this regard. But hitting out at the ICC instead of constructively and directly engaging the question of Security Council reform is passive-aggressive — and, like all passive-aggression, more an expression of powerlessness than anything else.
Finally, these actions do not confirm the superficial argument about the need to “sequence” peace and justice. They are about the need to reconsider and break from the model of conflict-resolution on the continent and elsewhere.
There is not a single negotiated “peace” settlement on the continent or elsewhere that has not rewarded incumbents behaving badly or other belligerents for mass murder. The real moral of the story is that it is at the national level that the battle to end impunity must be fought.
Through better victims’ organising, political parties that believe their citizens deserve better and not to be slaughtered and receive no justice as it so casually happens. Accountability is the last frontier.
L. Muthoni Wanyeki is Amnesty International’s Regional Director for East Africa, the Horn and the Great Lakes.