South Africa and Burundi’s decision to quit the International Criminal Court (ICC) and an attack by Gambia against its supposed “Caucasian” justice are likely to embolden other African states to leave the world’s only permanent war crimes tribunal.
Although criticising the Hague-based institution for perceived anti-African bias has long been a favourite pastime for many African leaders, in most cases it amounted to pandering to a domestic audience without much real intent.
That has now changed, with the precedent established of local politics justifying actual withdrawal.
With South Africa – a continental heavyweight and key backer of the ICC in the late 1990s – making clear that it could no longer tolerate the court’s denial of immunity to sitting leaders, the departure gates have been flung open.
All eyes are now on Kenyan President Uhuru Kenyatta, the ICC’s chief tormentor who made history in 2013 by becoming the first sitting head of state to appear before the court, on charges of crimes against humanity.
The case relating to Kenyatta’s alleged role in post-election violence in 2008 in which at least 1,200 people died collapsed in 2014 for lack of evidence.
But in January this year, with charges still hanging over his deputy, William Ruto, Kenyatta took to the floor at the African Union (AU) to call for a “roadmap for withdrawal” for Africa’s 34 ICC members.
Supporting South Africa’s subsequent stance, Kenyatta took aim in particular at Article 27 of the ICC’s 1998 Rome Statute which affirms the “irrelevance of official capacity” – in other words, nobody, no matter how powerful, is above the law.
Kenyatta, who faces another election next year, then played the global security card, saying that this compromised Kenya’s ability to fight Islamist militancy, a genuine concern in the wake of a major attack in 2013 on Nairobi’s Westgate mall.
“We’ve had to contend with the ICC pursuing weak, politicised cases. This has become a huge distraction from our duty serve our people and this continent fully. That is not what Kenya signed up for when we joined the ICC,” he said.
Kenya’s parliament has passed two resolutions since 2010 calling for withdrawal, but government spokesman Manoah Esipisu said that the cabinet was still deciding – in the wake of South Africa’s move – whether to go ahead.
“It is accurate to say that a decision of the executive is pending,” he said.
Neighbouring Uganda, whose President Yoweri Museveni labelled the ICC “a bunch of useless people” at his inauguration in July, is already shaping up for a fresh push at the next African Union summit in January for an African exodus.
“The ICC deserves what’s happening to it now,” junior foreign affairs minister Okello Oryem said. “Our argument has always been that there’s a need for the whole of Africa to withdraw from the ICC. We hope that matter will come up at the next AU summit and then we’ll be able to pronounce ourselves.”
Most worrying for the ICC, which has been fighting to counter the allegations of anti-African bias and “neo-colonialism”, is that local or regional politics stood behind the three recent decisions to pull out.
Although Gambia, which derided the ICC as the “Infamous Caucasian Court”, does not yet appear to have sent its formal divorce papers, President Yahya Jammeh, who has been accused of serial rights abuses since seizing power in a 1994 coup, is unlikely to back off ahead of an election in December.
While also citing ICC neo-colonialism, Burundi’s move followed the ICC’s opening of an initial probe into the rape, torture and murder of hundreds of people during an 18-month political crisis.
South Africa’s decision can be traced back to visit one year ago by Sudanese leader Omar al-Bashir when Pretoria flouted its obligations to arrest him under an ICC warrant for alleged war crimes.
It even violated a domestic court order in allowing Bashir to leave, a clear demonstration of the shift in Pretoria’s foreign policy under President Jacob Zuma from the international idealism of Nelson Mandela to plain African realism.
The ICC admits that it is rattled but is determined to keep going, and in particular to counter the allegations of anti-African bias.
“We must remain strong,” chief prosecutor Fatou Bensouda, a Gambian, told reporters in The Hague this week. “This is a challenge we see now. We will see it more. It is not going to go away.”
To date, all but one of the court’s 10 investigations have been in Africa and its five convicted suspects are from the Democratic Republic of the Congo, the Central African Republic, and Mali.
However, it argues that many of these cases were brought by African governments themselves, not outsiders, and that it has 10 preliminary investigations into alleged atrocities elsewhere in the world, including in Afghanistan, Colombia, Iraq, the Palestinian Territories and Ukraine.
“Even if half the African countries leave, it would be very unfortunate and damaging to the concept of international justice but it won’t shut the court down,” one ICC official, who did not want to be named, told Reuters. “This was bound to happen when dictators – for the most part that’s what they are – decide to run for cover.”

UN chief warns quitting ICC sends wrong message
United Nations Secretary General Ban Ki-moon expressed regret yesterday that South Africa, Burundi and Gambia want to leave the International Criminal Court and said it could “send a wrong message on these countries’ commitment to justice”.
The International Criminal Court, which opened in July 2002 and has 124 member states, is the first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes.
South Africa and Burundi have officially notified the United Nations of their intent to withdraw from the Rome Statute, the 1998 treaty establishing The Hague-based court, which will take effect in October 2017.
Gambia said this week that it also plans to withdraw from the court, but it has not yet notified the United Nations.
Ban acknowledged the concerns of some countries which have accused the court of being too focused on Africa.
“These challenges are best addressed not by diminishing support for the Court, but by strengthening it from within,” Ban told a UN Security Council meeting on co-operation between the world body and regional groups.
“Deterring future atrocities, delivering justice for victims, and defending the rules of war across the globe are far too important priorities to risk a retreat from the age of accountability that we have worked so hard to build and solidify,” said Ban, who steps down at the end of this year.
The withdrawal of South Africa and Burundi from the court are likely to embolden other African countries to leave.