International Criminal Court facing exodus of African nations over charges of racism

It is called the court of last resort, a place where the worst crimes against humanity are tried.

But the International Criminal Court (ICC) has been dealt a serious blow recently. Three African nations are withdrawing from the court, alleging it is racist. Others are threatening to follow suit.

Foreign Affairs Minister Stéphane Dion is today in The Hague at a meeting of ICC members, where much of the focus is bound to be on keeping the court's membership intact and its mandate viable.

Canada is considered the midwife to the ICC. In 1998, Canadian diplomats guided the negotiations that created the court, which investigates war crimes, crimes against humanity, crimes of aggression and genocide.

The result of the tense talks was a court where the law is supposed to protect individuals from the violent actions of the powerful. Since it began operating in 2002, it has been endorsed by 124 countries, 34 of which are African.

For a decade, the court enjoyed widespread support, but that started to change once it began looking at the actions of heads of state. In 2009, the court sought the arrest of Omar al-Bashir, the longtime leader of Sudan, whose suppression of minorities living in the Darfur region has been widely documented. 

'International Caucasian Court'

In recent weeks, Burundi, Gambia and South Africa have signalled their intention to pull out of the court.

Gambia has been singled out by Amnesty International and others for a series of human rights abuses, including disappearances of journalists and government opponents, torture and extrajudicial executions. In Burundi, there's been a year of deadly violence ignited by the president's refusal to leave office at the end of his term. 

Still, both countries charge that the court is racist and unfairly focuses on Africa.

Announcing his country's intention to withdraw, Gambia's information minister, Sheriff Baba Bojang, said the action "is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the prosecution and humiliation of people of colour, especially Africans."

Critics also point out that nine of the 10 cases currently under investigation by the ICC are based in Africa. 

In one case, 70 charges, including murder, sexual slavery and conscripting children, were brought against leaders of the Ugandan rebel group the Lord's Resistance Army (LRA). Some members have been convicted, but trials are still underway.

Attempt to shirk accountability?

The fact that African leaders have themselves asked the ICC to investigate in most cases, as in the LRA case, is being ignored to shape a different narrative, says Erna Paris, author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.  

"These charges of racism and neocolonialism are essentially to avoid accountability," she said.

It is South Africa's decision to quit the court that is likely most disconcerting for ICC members such as Canada. Former South African president Nelson Mandela championed the establishment of the court, arguing at the time that impunity for the most serious international crimes must end.

South Africa's dispute with the ICC is over just that — specifically, whether the continent's leaders should enjoy full diplomatic immunity. 

It came to a boil last year when Sudan's al-Bashir visited South African President Jacob Zuma. The ICC demanded that al-Bashir be arrested and sent to The Hague to stand trial for crimes against humanity. Zuma refused.

At an Oct. 21 news conference in Johannesburg, South Africa's justice minister, Michael Masutha, said withdrawing from the court will allow South Africa to continue to welcome foreign dignitaries under the country's Diplomatic Immunities and Privileges Act, which gives sitting leaders diplomatic immunity.

The court's obligations, he said, "are inconsistent with domestic laws."

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Dion has reacted strongly to South Africa's planned withdrawal. In a letter urging its leaders to reconsider, Dion wrote: "We must not forget the thousands of children, women and men who have been victims of unimaginable atrocities and for whom the International Criminal Court, as a court of last resort, offers the only hope of justice."

Although the African Union is urging all its members to withdraw, several, including Botswana, say they intend to remain. At Wednesday's meeting in The Hague, Dion will be trying to shore up that support and see if he can entice others to remain dedicated to this court of last resort.