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ICC May be Flawed, But It's Far From Finished in Africa

  • Jill Craig

The International Criminal Court, The Hague.

The International Criminal Court, The Hague.

South Africa and Burundi have sent letters of intent to withdraw from the International Criminal Court to the U.N. secretary-general. Gambia says it will do the same.

These threats are nothing new, says Angela Mudukuti, international criminal justice lawyer at the Southern Africa Litigation Center.

"Every year, about this time, we see the same thing, where states say they are going to withdraw but then they never actually do it," said Mudukuti. "Namibia did it last year, Kenya's been talking about it for years, Uganda's spoken about it as well, and there are various states who have threatened to leave the ICC but never actually done anything.

But, she adds, "now that there's someone who has actually started the process, it is a different ballgame and there could be more."

FILE - An October referendum will determine whether Congo President Denis Sassou Nguesso can seek a third term in office.

FILE - An October referendum will determine whether Congo President Denis Sassou Nguesso can seek a third term in office.

African leaders upset

African leaders have long decried a perceived bias by the court, arguing they are being unfairly targeted.

The Hague-based court has served a warrant for the arrest of Sudan's President Omar al-Bashir, who is wanted for war crimes, crimes against humanity and genocide in the Darfur region

Kenya's President Uhuru Kenyatta and his now-deputy William Ruto were accused of crimes against humanity in connection with Kenya's 2007 and 2008 post-election violence, although the charges were subsequently withdrawn and vacated.

All but one of the 10 investigations by the ICC have taken place in African countries.

"A critical question comes to your mind, why are other atrocities around the world not brought to the attention of ICC? Why is the focus only on Africa? So this is a question which attracts a discussion," said John Seka, president of the Tanganyika Law Society in Tanzania.

Seka says that he believes an African court, such as the Arusha-based African Court on Human and Peoples' Rights, would be a better option than the ICC.

FILE - Kenya's President Uhuru Kenyatta inspects a guard of honor before the annual State of the Nation address at the Parliament Buildings in Nairobi.

FILE - Kenya's President Uhuru Kenyatta inspects a guard of honor before the annual State of the Nation address at the Parliament Buildings in Nairobi.

Court's end is near?

But Kenyan international law expert and University of Nairobi lecturer Herman Manyora disagrees, saying he does not believe that an African court can supplant the ICC.

"For now, no, it can't work. Africa is home to impunity," said Manyora. "The lords of impunity cannot be expected to come up with a court of justice, who can try the very same people who are the perpetrators, with impunity."

Manyora argues that more progressive forces are coming into leadership positions, and they don't like the impunity.

"You know, they are beginning to take government. Buhari is in Nigeria. There are others elsewhere. And I don't think, it's a sad situation to say, that those with the agenda to leave will remain in power. So I don't think Africa will leave en masse. It's not possible," Manyora said.

Seka agrees that the ICC will not see its end in Africa any time soon.

"I'm not envisioning a dead ICC in the next 10 years, I think it will continue to exist for quite awhile, and it will be with us for more time to come," said Seka.

Mudukuti says that state parties have the power to amend the Rome Statute, so they should instead work to fix the problems, not leave.

"And states that have signed up for the Rome Statute have the capacity and the potential to affect change from the inside," said Mudukuti. "But once you leave the system, there's nothing you can do about it."

South Africa, Burundi and Gambia are planning to leave anyway. The question now -- will other African nations follow?

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