Special Feature Blog on the Future of the International Criminal Court

Laura Truesdell, Blog Writer

In a bold statement, the African Union has adopted the Kenyan government’s proposal to develop a “roadmap” for withdrawal from the Rome Statute International Criminal Court (ICC) at a summit held in early February 2016. President Uhuru Kenyatta of Kenya, whose own case of crimes against humanity before the ICC was terminated in March 2015 due to a lack of sufficient evidence, warned his fellow members that it was not their duty to continually support what he views as an incredibly dysfunctional court. His sentiments were echoed by the African Union Chairman and President of Chad, Idriss Déby, who was also highly critical of the ICC. The Chairman voiced his concern at the summit that the court was specifically targeting African leaders, a concern which has been expressed by many African leaders as well as others critical of the ICC.

The ICC was established in 2002 as an international court through which to try war criminals and perpetrators of genocide who would never face prosecution in their home countries. Since then the ICC has opened 9 inquiries, 8 of which involve African states. On that statistic alone it is not hard to see why African leaders view the court as a “tool of western imperialism”, and why many African nations are making plans for withdrawal. The fear is that with the withdrawal of States from the Rome Statute, the way will be paved for impunity for war crimes, crimes against humanity and genocide to become entrenched within a Continent continually marred by civil wars. However the consequences will extend beyond Africa, and risk severely curtailing the ICC’s ability to investigate and prosecute any and all war crimes in the future owing to the severe damage withdrawal will cause to international cooperation.

The African Union’s acceptance of the Kenyan government’s proposal came just as the trial of the former Ivory Coast president Laurent Gbagbo began at the ICC last month. The trial has  further damaged the credibility and legitimacy of the ICC in the eyes of the victims when a confidential witness list was publicly exposed.  Since its inception the ICC has struggled with getting witnesses to testify, and has gone to great lengths to protect the identities of those who do bravely come forward. The exposure of the witness list could not have come at a more politically sensitive time, and will only serve to add to the increasingly battered reputation of the ICC in the eyes of the African people.

Although no legally binding decision was made at this most recent African Union Summit, the intention of many African nations remains clear – that they will begin the process for withdrawal.  Leaving the ICC, with no mechanisms in place to prosecute war crimes and acts of genocide domestically, would leave countless numbers of individuals without any protection. By setting such a precedent African leaders risk opening the door for other countries to depart as well, leaving the ICC with little to no authority to pursue its mandate in the future. Perhaps it is time for some reforms to the Rome Statute that would encourage African nations’ continued participation, while ensuring greater protection for victims.  As the legitimacy of the court wanes in the eyes of both African leaders, and the African people themselves, withdrawal dangerously risks silencing victims of genocide permanently. 

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