Academic journal article The Journal of Pan African Studies (Online)

South Africa's Disappointment with the International Criminal Court: The Unfair Treatment of African People Caused an End to Cooperation

Academic journal article The Journal of Pan African Studies (Online)

South Africa's Disappointment with the International Criminal Court: The Unfair Treatment of African People Caused an End to Cooperation

Article excerpt


The Rome Statute created the International Criminal Court to prosecute people for committing crimes viewed as serious by the international community. That includes genocide, crimes against humanity, war crimes, and crimes of aggression. More than half of the world's countries are signatories to the Rome Statute, and 34 are from Africa. Controversy has arisen because of the ICC's focus on prosecuting people in Africa to the virtual exclusion of others.

Until January 2016, all of the situations the ICC investigated occurred in Africa. The focus on Africa led many, including South Africa, to believe the ICC unfairly targets them. They feel the ICC prosecutes Africans not to hold people accountable for the crimes they commit, but to further the political agendas of powerful western countries. In 2015, South Africa refused to execute the ICC's arrest warrant for President Omar al-Bashir of Sudan, challenged the ICC's authority, and made plans to withdraw from the Rome Statute.

This paper will argue that South Africa ignored the International Criminal Court's orders in 2015 and made plans to withdraw from the Rome Statute because 1) The indictments of the leaders of Sudan, Libya, and Kenya violated international law regarding immunity for heads of state; 2) The ICC is a political tool used to target African people; 3) The United States colludes with its European allies to control the ICC despite not being a signatory to the Rome Statute; 4) The ICC prosecutes people in Africa while ignoring similar crimes committed by others; and 5) The history of racism and colonialism makes Africans skeptical of non-Africans.

History of the International Criminal Court

Although many people in Africa believe the ICC is biased against them, African people played an important role in the ICC's creation. James Crawford (2008) discussed the history of the court. He said the idea for an international criminal tribunal dates back to 1872 (678). More recently, the issue arose in 1953 with the involvement of the United Nations. No such tribunal was formed because of disagreements over the definition of aggression, along with concerns related to the Cold War. Trinidad and Tobago raised the issue again in 1989, and it was from those efforts that a process began, leading to the Rome Statute being created in 1998 (679).

Rowland J.V. Cole (2013) noted that African countries were instrumental in forming the ICC. They had the highest regional representation in the world among countries that signed the Rome Statute (671). The Southern African Development Community (SADC), of which South Africa is a member, is a regional organization in Africa. Sivu Maqungo said that South Africa and four other SADC countries joined others in an attempt to create the ICC in 1993. Cole said the SADC members devised 10 principles in September 1997 that were considered when forming the ICC. In February 1998, 25 African countries participated in a conference in Senegal where the Dakar Declaration was adopted. That declaration sought to ensure the independence of the ICC, and committed the countries to establishing the court (673).

Maqungo revealed that South Africa was a member of the Drafting Committee of the Rome Conference, and worked with others to form part of the Rome Statute. South Africa led the SADC in July 1998 when the organization approved a draft of the treaty. The principle of complementarity, as opposed to giving the court primary jurisdiction, was supported to recognize the sovereignty of countries. South Africa also wanted the Rome Statute to include a provision recognizing reconciliation and amnesty efforts. Provisions adopting complementarity and amnesty were included because of its efforts.

The Rome Statute entered into force on July 1, 2002. Although intended to be an independent organization, it is funded not only by its members but by other individuals and entities ("ICC - About the Court"). The ICC was to be a court of last resort that would only intervene if a national legal system either refused or was unwilling to prosecute. …

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