In the wake of South Africa’s, Burundi’s and The Gambia’s decision to withdraw from the International Criminal Court (ICC), the focus of observers and commentators has been on who is next. Who will join the “queue” to leave the ICC? Which state will be the next “domino” to fall? Where is the the next candidate to partake in this “mass exodus”. Much less attention has been paid to which African states won’t be joining the withdrawal parade. To that end, here are ten current African ICC member-states that I believe won’t be heading for the exit, starting with the obvious ones — those states that have declared their support for the ICC in the wake of recent withdrawals.
The government of Botswana has made by far the most emphatic statement criticizing the recent spate of withdrawals from the Court. In a press release, the government exclaimed that withdrawing from the ICC undermined victims and the global fight for impunity. Botswana has regularly stood alone in publicly proclaiming its support for the ICC, particularly in African Union (AU) summits. Notably, Botswana also doesn’t believe that the Malabo Protocol, which would allow the African Court on Human and People’s Rights to prosecute international crimes, should go forward given its immunity carve-outs for state officials and the continued existence of the ICC. Botswana isn’t going anywhere.
Senegal was among a handful of states that ensured that the issue of an Africa-wide withdrawal from the ICC did not reach the agenda of Head’s of States at the July AU summit in Kigali, Rwanda. The country’s Justice Minister, Sidiki Kaba, also acts as the President of the ICC’s Assembly of States Parties (ASP). Representing his government and the ASP, Kaba has expressed his regret over the decision of African states to withdraw from the ICC.
It is rare to hear much from Sierra Leone regarding the ICC. The country, of course, has a rich and unique place in the history and development of international criminal justice. The Special Court for Sierra Leone (SCSL) examined atrocities committed in the country and, in a landmark case, convicted and sentenced former Liberian President Charles Taylor to fifty years in prison for war crimes and crimes against humanity during the country’s civil war. More pertinently, Sierra Leone’s Ambassador to the Netherlands stated this week that “just because three states are leaving, does not mean Africa is leaving” the ICC.
Tunisia was among those states that pressed AU delegates to avoid the agenda item of an Africa-wide mass withdrawal reaching the Heads of States’ negotiation table at the last AU summit. Moreover, Tunisia is the most recent African state to become a member of the Court. It joined in 2011, in the wake the Arab Spring. The government in Tunis has never suggested, or even implied, that it held any regret over the decision and its recent actions at the AU suggest its happy as an ICC member-state.
Like Tunisia and Senegal, Nigeria stood up for the ICC at the AU summit in Kigali. Ongoing violence in the country is currently under preliminary examination by the ICC and in its late stages. It seems unlikely that Nigeria wants the ICC to open an official investigation. But the relationship between the ICC and Abuja is good. The country is cooperating with the Court to ensure that, wherever possible, it is able to bring perpetrators of mass atrocities to account itself.
Just last month, Gabon requested that the ICC investigate alleged crimes against humanity perpetrated in the wake of its recent presidential election. Remarkably, one of the most prominent figures behind the initial anti-ICC campaign in Africa, Jean Ping, welcomed the decision to invite an ICC investigation. Like Uganda and the Democratic Republic of Congo, both of which self-referred themselves to the ICC, the Gabonese government likely believes that the Court’s intervention could help it marginalize, perhaps even get rid of, domestic adversaries and opponents. This is something to watch very closely. But for now, no one should expect Gabon to ditch the Court.
The Central African Republic
The Central African Republic (CAR) hold the distinction of being the only state in which the ICC has opened an investigation twice. These investigations — unimaginatively termed “CAR I” and “CAR II” — are ongoing. The government in Bangui has also committed itself to establishing a hybrid tribunal, the Special Criminal Court (SCC), to investigate atrocities by the Seleka and anti-Balaka militias. Crucially, officials have repeatedly insisted that the SCC will act to complement rather than compete with the ICC’s investigations — which they welcome. CAR is not a candidate for withdrawal but it may very well prove to be a fascinating experiment in how a hybrid tribunal and the ICC can work together.
The Democratic Republic of Congo
It isn’t a sure-bet, but it seems unlikely that the Democratic Republic of Congo (DRC) would leave the ICC. As suggested above, the government in the DRC continues to reap domestic benefit from the ICC’s work in the country. No government official in the DRC has ever been targeted by the Court. And, unlike Uganda’s President Yowerei Museveni, the DRC’s officials don’t regularly have a hissy-fit over the ICC and threaten to withdraw from the Court.
Tanzania prides itself for being the home of the Arusha, The Hague of Africa (although sometimes I think it should be the other way around). Chief Justice Mohamed Othman Chande, who is a member of the Africa Group for Justice and Accountability, and his government are committed to the ICC and voicing their concerns within appropriate channels, namely the ASP. Along with Botswana, Tanzania is an outspoken supporter of the Court. The recent withdrawals won’t change that.
After having self-referred itself to the ICC, Mali has been under investigation by the Court since 2012. Like in all cases of self-referrals, only government adversaries have been targeted ICC prosecutors. Crucially, the Malian government cooperated very closely with the Court over the case of Ahmad al-Faqi al-Mahdi, who was convicted earlier this year for the war crime of destroying cultural antiquities and shrines in Timbuktu. Al-Mahdi would never have reached the ICC had it not been for the cooperation of the Malian government.
Bonus Country! Niger
The surrender of al-Mahdi to the ICC actually required the cooperation of Niger as well — as he was in their custody, not Mali’s. It is evident that Niger gladly ensured al-Mahdi’s surrender to The Hague. It’s not a slam-dunk that Niger remains in the ICC, but if it didn’t, it would come as a surprise.