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Powerless Arbitration: The Withdrawal of Nations from the International Criminal Court

Crimes against humanity, genocide and war crimes are some of the most despicable acts that humans can inflict upon each other. Yet efforts to reduce their prevalence, especially in war zones, seemed to have failed at the international level.In the last two months, Burundi, Gambia, and South Africa announced their formal withdrawal from the International Criminal Court (ICC).

On July 1st, 2002, the Rome Statute established the ICC as a supranational tribunal for the purpose of investigating, prosecuting, and arresting leaders and perpetrators of crimes against humanity in the hopes that it would prevent leaders from harming their people without impunity.

The origins of an international court like the ICC can be traced back to the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE) following the end of World War II. These courts existed to adjudicate cases against the Axis powers for committing crimes against humanity and would lay the legal foundation for a more permanent tribunal in the modern day.

During the last decade of the twentieth century, the 1994 Rwandan genocide and the Yugoslav Wars of the 1990s seared images of ethnic cleansing and stories of rapes and killings into the minds of many people around the world. Given the horrific nature of these crimes, the international stage responded with a concerted effort to create a body that would capture and punish leaders who carried out these acts of violence. For the last fourteen years, the ICC has conducted 10 formal investigations and indicted 39 leaders, though there has not been any success by the court in forcing leaders to serve out their sentences as many are either in hiding or in positions of power that prevent them from being apprehended.

Within the last two months, the three countries that have withdrawn from the ICC did so as tensions rise over the jurisdictional and sovereignty conflicts of the tribunal. Burundi was the first to formally announce its intention to leave the ICC, followed by South Africa and Gambia a week later.

All three African nations argued that many, if not all, of the investigations currently being pursued by the ICC have targeted African countries rather than any Western countries that might have committed war crimes. They allege that the cases brought against members of the African Union are a form of colonial and Western imperialism. Furthermore, they argue that the actions of the International Criminal Court calls into question the neutrality of the tribunal and they believe that it undermines their own national sovereignty to have the ICC deliver warrants that they would be forced to obey.

South Africa, in particular, views the Rome Statute as incompatible with its own national laws that grant diplomatic immunity to sitting heads of state. They argue that the provision that requires their handover of wanted leaders would be in violation of their diplomatic ties with certain nations as well as their engagement in peace talks and dialogue with other countries.

Such a case occurred in 2015 when President Omar al-Bashir of Sudan visited South Africa.  The ICC issued a warrant that called for his arrest but South Africa did not comply with their request and ultimately allowed al-Bashir to leave the country—in direct violation of the ICC’s orders.

In addition to the withdrawal of these African nations, President Vladimir Putin has called for Russia to withdraw from the treaty (although they had not yet ratified the Rome Statute). Putin has called the ICC “ineffective and one-sided” and Russia’s Foreign Ministry has pointed to an investigation of war crimes by Russia during the Russo-Georgian War as evidence of bias against their country.

With the slow dissolution of the ICC as more nations withdraw from the Rome Statute, existential problems as well as failures in enforcement must be rectified before the tribunal loses more of its members. Some of the problems that have been raised with the ICC is that there are no checks and balances on the court to maintain its neutrality and prevent bias from entering its investigations. Investigations targeting African leaders weaken the image of the Court due to accusations of politicization.

Also, the ICC is heavily reliant on the use of soft power to convince various state parties to comply with its rulings and to help capture those who have been indicted, prosecuted, and sentenced. Cases that are investigated by the ICC are those that state parties are unwilling to prosecute at the national level and thus require international intervention. This principle of complementarity is designed to ensure the participation of countries so that their judicial system remains sovereign. But this also means that countries can acquit leaders or refuse to file criminal charges without the intervention of the ICC. Because of the precarious nature of the institution and a weak enforcement mechanism that relies on the participation of other countries, this has been a large vulnerability in the implementation of the court’s rulings.

Currently, there are 124 state parties that have ratified the Rome Statute, including Gambia, South Africa, and Burundi. However, some of the major players on the international stage, like the members of the UN Security Council, have yet to ratify the Rome Statute. These countries are the United States, China, India, and Russia which populations together make up more than 3 billion people, or over a third of the global population. If any of these countries were to join the ICC, there would likely be greater power for the court given the considerable influence that they would have on other countries to comply with the court’s rulings.

Safety issues have also marred the current investigations by the ICC, given that the nature of these cases often require entering various countries and potential war zones to compile reports for the court. Witness tampering and evidence suppression has also been suspected, with reports of potential witnesses and victims being put in mortal danger. Since the ICC cannot protect the witnesses who might come to speak before the Court, it poses a potential problem for getting victims to come forward and speak about things they witnessed.

In response to these issues, changes have been proposed to the ICC. Stronger enforcement mechanisms like economic sanctions would force countries to apprehend and hand over leaders who are currently within their borders. Also, the ICC should consider pushing more countries to sign and ratify the treaty in order to give it the international standing and soft power necessary to be taken seriously and to have its rulings enforced.

With the withdrawal of Gambia, South Africa, and Burundi as well as the symbolic withdrawal by Russia, the International Criminal Court will face significant opposition within the next decade if it fails to develop stronger relationships with other countries, to create an image of neutrality on the international stage, and to produce a substantive enforcement mechanism for enacting its sentences. Justice, after all, remains the last refuge for victims of crimes against humanity, genocide and war.

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