In the last week of June, Niger, Mali, and Burkina Faso submitted requests to withdraw from the International Criminal Court (I.C.C.), initiating the year-long process to remove themselves. This notification of withdrawal comes nine months after comments made by the three countries in September criticizing the Court and calling it “a tool of neocolonial repression.” This critique draws on what has long been a concern about the Court since its founding in 2002: does the I.C.C. have an “Africa bias?” Some argue that the Court is disproportionately focused on Africa, being that nine of their 18 active and concluded investigations have been focused on African states, and this represents a prejudice against Africans and their leaders.
The I.C.C. was created on 1 July 2002 and is an international body of justice which has jurisdiction over genocide, war crimes, crimes against humanity, and aggression. The Court’s express purpose is to be a permanent institution of justice and to prevent impunity for grave crimes. The I.C.C. has investigated alleged crimes in 18 countries since its founding and has opened 34 cases against accused perpetrators. The key limitation on the Court’s functionality is that only crimes committed by nationals of or within the territory of a State Party to the Rome Statute, the I.C.C.’s governing document, fall under I.C.C. jurisdiction.
Criticism of the I.C.C. about its alleged bias against African states comes from the fact that half of all situations under investigation since the Court began have been in countries in Africa. Those opposed to the Court argue that it is nothing but a hand for the privileged to punish the disadvantaged, or that Western developed countries are free to weaponize the Court for imperial gains against developing countries. Claims such as these are central to the reasons that Niger, Burkina Faso, and Mali have chosen to withdraw from the I.C.C.
However, when looking at the nine investigations into African countries, five of them have been referred to the Court by their own country’s government. This is one of three pathways to open an investigation, the other two being by the I.C.C. Prosecutor’s initiative or a referral by the United Nations Security Council (U.N.S.C.). More often than not, investigations in African countries have come as a result of a request from the country. This is something that the United Nations Association has referred to as “African enthusiasm for the I.C.C.”
There are other, more valid complaints, about the I.C.C. and how its limitations create bias or unequal justice. Most notably, the Court relies on the consent of its State Parties to investigate and prosecute crimes, and several powerful nations, including the United States, China, and Russia, have to date refused to become State Parties. This becomes more problematic when examining how closely the I.C.C. is tied to the U.N.S.C. A referral from the U.N.S.C. is the only mechanism through which a non-signatory can be prosecuted for crimes under the jurisdiction of the Court. With three of the five permanent members of the Council not being signatories themselves, justice is prevented and room for impunity grows.
Another aspect of concern is the Court’s inability to act as an international enforcement body. The I.C.C. relies on the cooperation of its State Parties to execute arrest warrants, apprehend alleged criminals, and fund their operations. This system creates vulnerabilities for the Court which can be handicapped by rich, powerful countries who disagree with or feel threatened by the Court’s actions. For example, the United States has leveraged its economic power to sanction the I.C.C. prosecutor, other I.C.C. staff, and organizations that support the Court. This serves to insulate American citizens, Allies, and interests from scrutiny and investigation by the I.C.C. This tactic has been employed against the Court and human rights organizations to hamper investigations into both Israeli crimes committed in Palestine as well as American crimes perpetrated in Afghanistan (Al Jazeera).
While the I.C.C. has a list of flaws and shortcomings, an Africa bias seems to not be a major concern. One consideration when examining the recent withdrawals of the three African nations are the domestic politics in each country. The leaders of Niger, Burkina Faso, and Mali, Abdourahamane Tchaini, Ibrahim Traoré, and Assimi Goïta, respectively, each ruled by military junta and acceded to power through coup d’états. According to Human Rights Watch, each of the three leaders face accusations of war crimes and potential crimes against humanity in their respective struggles against Islamist armed groups. There is a chance that each country is choosing this moment to withdraw from the I.C.C. in order to prevent application of the Court’s jurisdiction to their territory. Withdrawal from the I.C.C. is a flawed avenue to express concern over what these countries claim to be “selective justice,” yet their withdrawal serves to “remove the prospect of justice for victims and the protections they are provided by the Rome Statute,” (Amnesty International).
Niger, Burkina Faso, and Mali are preventing their citizens from receiving justice and redress during a time of increasing conflict and violence in the Sahel region. This action furthers impunity and removes avenues to justice while national courts are already failing to provide support to victims. This withdrawal not only blocks citizens of these three nations from protections from their governments, but also from the crimes and human rights violations perpetrated by the armed militia groups fighting for control of their homes.
Withdrawals such as these hint at a major wave of authoritarianism and impunity which is visible around the world. Hungary announced their intent to withdraw from the I.C.C. just over a year ago during a visit by Israel’s Prime Minister Benjamin Netanyahu. Hungary not only declined to act on the I.C.C.’s active arrest warrant against Netanyahu by placing him in custody, one of their responsibilities as a State Party to the Rome Statute, but to signal their alignment with his administration and crimes by distancing themselves from the Court. While Hungary was not the only State Party to neglect their duty to act on I.C.C. warrants, they are the first to take a step backwards in the realm of international justice. At a time when the United Nations recognizes a genocide in Gaza and potential crimes against humanity and war crimes in both Gaza and the West Bank, alignment with Israel in this way signals that the world tolerates their crimes and will not prosecute them for their human rights violations.
The I.C.C. has urged all member states to pressure Niger, Burkina Faso, and Mali to reconsider their withdrawal. Their separation from the Court threatens not only the rights and safeties of their own citizens, but people all around the world. Allowing leaders accused of grave crimes to walk freely away from the only body of consequences sets a dangerous precedent in an international environment rife with conflict and violence.
There is no denying that the I.C.C. has problems to address and roads for improvement; however, it only remains as strong as its constituent members. If countries continue to spread falsehoods about the reputability of the court and shirk their responsibilities as members, even giving their memberships up, regular people and international justice will suffer. While the Africa bias might not be real, threats to upholding human rights around the world are. Worldwide leaders owe it to their citizens to fight for their rights and protections and to urge their peers to do the same.
