African “withdrawals” from the ICC produce a new twist…

African “withdrawals” from the ICC produce a new twist…©Guillaume Colin and Pauline Penot, 2009
Gambia's former president Yahya Jammeh might face justice
2 min 35Approximate reading time

At the end of October, three African countries announced with fanfare that they were leaving the International Criminal Court (ICC). They slammed it for lack of legitimacy, unjustified attacks against Africans and neo-colonialism. But it is intriguing to note the developments in these three countries (Burundi, South Africa and Gambia) a few weeks later. There may yet be some strange twists to the story, including Gambia’s likely imminent return to the ICC. 

The world is decidedly unpredictable. That is certainly what Yahya Jammeh, the autocrat who ruled The Gambia for 22 years and warned the opposition they would find themselves “six feet under”, must be telling himself. Assured by his sycophants of his popularity with his people, the Gambian president organized free elections on December 1. To his amazement, he lost. He who announced in October that his country was pulling out of the ICC could well find himself in the dock at the same court, since the new government plans to re-join it. 

The case would be ironic. The ex-president would appear before the ICC Prosecutor, Fatou Bensouda, who was his Minister of Justice in 1998 and even his legal counsellor up to 2000! But we have not got there yet. The former president is accused by various organizations of responsibility for extra-judicial executions, forced disappearances and acts of torture. But it remains to be seen if such acts constitute a crime against humanity, which is necessary for the ICC to take up the case. 

Let’s recap the surprising events of the last weeks. At the end of October, Gambia announced its withdrawal from the ICC, with the Justice Minister accusing the Court of racism. "The ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans," he said. In November, the government made its ICC withdrawal official. At the beginning of December, Yahya Jammeh fell from power. Political prisoners were immediately freed. Fatoumata Jallow-Tambajang, one of the leading voices of the former opposition, declared that ex-president Jammeh could himself face the judges. According to the Guardian, the new Gambian government has not yet decided if Gambia’s former autocratic president should be tried in the country or before the ICC. 

As for South Africa, President Jacob Zuma is still in power, but troubled by repeated corruption scandals. For weeks, his lawyers have been trying to block publication of an inquiry by the country’s former Mediator, “Mrs Anti- Corruption”,  into the President’s links with a rich business family, the Guptas, alleged to have obtained lucrative contracts and ministerial posts for politicians close to them. These revelations come after the soap opera-like tale of Zuma’s private residence, renovated with public funds and for which the president was finally forced to reimburse 500,000 Euros to the State. Zuma, who is already under investigation for corruption by the national courts, is also under pressure from South Africa's Supreme Court of Appeal, which in March this year accused him of "disgraceful" and unlawful  conduct for not having arrested Sudanese president Omar Al Bashir when he was in South Africa in line with the country’s ICC obligations. And the ICC announced on Thursday it will hold a hearing in April to probe whether South Africa failed in its duty in failing to arrest Bashir.

Finally to Burundi, which has been the subject of an ICC preliminary examination since April 2015. Having examined the reports, which speak of murder, imprisonment, torture, rape and other forms of sexual violence, Fatou Bensouda has concluded that these crimes “seem to fall under the ICC’s jurisdiction”. By withdrawing from the Court, the government is conducting a preventive policy to head off ICC allegations against it. 

Since its creation in 2002, the ICC has made many mistakes in its penal strategy, particularly by focusing only on African situations. But it is clear also that out of the three African governments that announced an ICC withdrawal at the end of October, one is about to come back, one is troubled by wide-scale corruption allegations and the other is under ICC investigation for international crimes.