Is the ICC in danger?

Authored By: Elena Sakelaris

The International Criminal Court was established by the Rome Statute to exercise jurisdiction over some of the most serious international crimes.  As of last Friday, there is one less country under the Court’s jurisdiction.  South Africa decided to withdraw from the ICC after Burundi left the ICC.  Justice Minister Michael Masutha along with other South African officials argued that the Rome Statue conflicts with South Africa’s law that gives sitting leaders diplomatic immunity.  Support for the ICC in Africa has been waning over the past few years as the majority of individuals convicted are African.

Diplomatic immunity is not a new concept; a vast majority of States exercise this principle.  However, many States also recognize the need to limit diplomatic immunity from extending to grave crimes, such as the crimes over which the ICC has jurisdiction.  Throughout history, the severity of a crime generally relates to the position held by the individual committing the crime, and the more powerful a person is the more severe the crime can become.  The atrocities committed during World War II under Hitler’s reign came from the top down.  Powerful individuals, sitting leaders, have the ability to commit the greatest horrors—genocide, war crimes, crimes against humanity, crimes of aggression.  The crimes that the ICC seeks to prosecute are only those of the most serious nature.  The ICC serves an important purpose in preventing or mitigating mass atrocities in places where authorities are unable or unwilling to bring the violators to justice.

South Africa ignored an order by the ICC to arrest President Omar Hassan al-Bashir of Sudan, who faces charges of crimes against humanity, genocide in the Darfur region of Sudan, and war crimes.  Under the Rome Statue countries are obliged to arrest anyone sought by the tribunal.  In refusing to arrest Mr. Bashir, South Africa failed to uphold its obligations under the Rome Statute. 

Many individuals will surely ask why does it matter that South Africa is withdrawing from the ICC when the United States is not under the Court’s jurisdiction?  At this point the biggest fear surrounding South Africa’s withdrawal is that this will begin a trend that other African countries will also leave the ICC.  Furthermore, many human rights advocates were appalled by the decision as well.  Withdrawal from the court could have devastating effects on individuals who have been victims of these grievous crimes.  Leaving the ICC also represents a digression from the advances made by South Africa in promoting human rights within the continent.  Human rights advocate groups within Africa have also argued that the decision to withdraw from the ICC without parliamentary approval is in violation of domestic law. 

It is too early to say whether or not there will be a mass exodus from the ICC, especially of other African Countries following South Africa’s example.  This does mean that South Africa will be accountable for virtually nothing as the country will no longer be subject to jurisdiction under the ICC.  International cooperation is already a delicate topic, and having a prominent country leave the ICC furthers unease internationally because it creates a fear of accountability regarding serious violations of international law and human rights.