Between unrest in the Central African Republic, Boko Haram in Nigeria, and a spike in violence against women and children in South Africa, it seems inappropriate to celebrate this year. Of all these atrocities, one of the most notable adversaries faced by the continent and the AU in recent months is the relationship of the International Criminal Court (ICC) with African countries. The ICC was established as an international tribunal with the jurisdiction to prosecute individuals for genocide, crimes against humanity, and war crimes. The ICC was intended to serve as a complementary institution to the domestic courts of signatory states. Which is why the recent outcry from African states that the ICC is biased against Africa in its prosecutions – all 24 of its defendants have been African – has been met with mixed reactions.
The tipping point for this debate might arguably have been the 2015 al-Bashir incident. Briefly, a warrant was issued in 2009 for the arrest of Sudanese President Omar al-Bashir, in connection with war crimes, crimes against humanity, and genocide in his country. He visited South Africa upon invitation by the President. South Africa, as a signatory to the Rome Statute of the ICC, was obligated to arrest al-Bashir and secure his appearance before the ICC. This did not happen, al-Bashir was whisked out of the country, and the courts declared the events unconstitutional and a breach of both international and domestic law. The matter resulted in South Africa’s announcement to withdraw from the ICC – along with Burundi and The Gambia. This led to a real possibility that African nations would withdraw from the ICC en masse, thus leaving the continent with no avenue by which to prosecute perpetrators of these crimes.
African countries found themselves divided on the necessity of the ICC and questions were raised about the attempt to extend the jurisdiction of the African Court on Human and Peoples’ Rights to war crimes and genocide. Questions of neo-colonialism in the form of the ICC were asked. Whilst South Africa’s withdrawal was brought to a grinding halt by the courts, and Burundi’s new government has indicated that it would not be following through on its withdrawal, the dust has yet to settle around the issue. Nations such as Botswana have been unwavering in their support for the ICC, and on Wednesday, Zambians resoundingly (by 93%) rejected an attempt by their government to withdraw from the ICC.
This shows that whilst support for the ICC still exists, a ball has been set rolling that could see heinous crimes against humanity go unprosecuted.
When one considers the violent history that wrought the liberation of African countries and which still plagues some today – along with the gross human rights violations endured – it seems obvious that we would go above and beyond to prevent them from going unpunished. Human rights have become entrenched in constitutions across the continent and yet the violators of these are protected by their own. Perhaps, a moment of introspection is due. As we don our national dress and come together in celebration today, remember those who are unable to celebrate because of the actions of actors like al-Bashir, who have no regard for human rights.
Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
