Given the mounting evidence of human rights abuses in both Burundi and Gambia, it is clear why they are pursuing ICC withdrawal, says Shannon Ebrahim.

Johannesburg - As South Africa, do we really want to line up alongside known human rights abusers Burundi and Gambia to lead the charge for the withdrawal of African states from the International Criminal Court (ICC)?

There is no question that the ICC is flawed and guilty of double standards, but it is the only international court we have to prosecute grave human rights abuses and genocide.

The most important consideration should be the victims, and despite all the rhetoric justifying the failure to arrest Sudanese President Omar al-Bashir at the AU Summit last year, there is no other process in place to prosecute him for the genocide he has been indicted for. Bashir has been flaunting his impunity for years, and we provided him with diplomatic cover.

Those in South Africa who support withdrawal from the ICC claim that such crimes can be prosecuted at the African Court of Human and Peoples’ Rights, which is more likely to dispense even-handed justice. But the reality is that this court has not proven willing or capable of prosecuting Bashir or others who have been indicted by the ICC.

Consensus within the AU as to the withdrawal from the ICC now seems to be fraying at the edges, with countries reconsidering their support for withdrawal, and a sizeable contingent of African states arguing vociferously against it.

Kenyan President Uhuru Kenyatta, who was himself indicted by the ICC for human rights abuses, led the plan to orchestrate a mass exit of African states from the ICC at the July AU Summit in Kigali. But there was significant push back from powerful African states like Nigeria, Algeria, the Democratic Republic of Congo (DRC), Senegal, Tunisia as well as Cape Verde, Ivory Coast and Burkino Faso. Nigeria put its case for remaining in the ICC quite simply - Africans should work to change the ICC.

Tanzania has been positive about the ICC but also laments its tumultuous relationship with Africa, and advocates dialogue with the body. Uganda is wavering on withdrawing from the ICC, although President Yoweri Museveni called the court useless at his inauguration this year. In 2004, Uganda referred a case from its own country to the ICC for investigation - that of the leader of the Lord’s Resistance Army, Joseph Kony.

The ICC has come under criticism for the fact that all of its investigations (except for Georgia) have been in Africa, but the majority have been referred to the ICC at the request of African states themselves.

The Central African Republic, the Ivory Coast, the DRC, Mali and Uganda have all referred cases in their countries to the ICC. It was only Libya and Darfur that were referred to the ICC by the UN Security Council.

The ICC is conducting preliminary examinations of situations outside Africa, which include Afghanistan, Colombia, Palestine and the actions of the UK in Iraq. If some of these lead to fully-fledged investigations and indictments that would boost the credibility of the court.

Burundi and Gambia have predictable reasons for wanting to withdraw as their leaders have been accused of gross human rights abuses in their own countries. Gambian President Yahya Jammeh, who came to power through a military coup in 1994, has been accused by human rights organisation of overseeing forced disappearances, arbitrary detention, torture and other human rights violations.

Similarly, a recent UN investigation on rights abuses in Burundi found evidence of rapes, disappearances and mass arrests, as well as the torture and murder of thousands of people. UN investigators have verified 564 executions in Burundi since April last year when the country’s president, Pierre Nkurunziza, prompted widespread protests by announcing he would seek a third term in office.

Given this mounting body of evidence of gross human rights abuses in both Burundi and Gambia, it is clear why their leaders are pursuing ICC withdrawal, but not as clear why South Africa is.

The government has not been accused of gross human rights abuses but its antagonism towards the ICC has to do with its almost exclusive focus on Africa, as well as a refusal to be dictated to as to who South Africa allows into the country. But are these good enough reasons?

If we are going to turn our backs on the effective prosecution of human rights abuses on the continent, then it requires a much broader consultation process within as well as parliamentary approval.

The South African public does not appear to share the government’s view on the ICC. Without the buy-in of the electorate on this critical decision, which has wide-reaching ramifications for international justice, then the decision will not be representing the will of the South African people.

* Ebrahim is Independent Media’s Foreign Editor.

The Sunday Independent