Is the International Criminal Court racist?

The strife between African countries and the International Criminal Court (ICC) is heating up.

Three African countries, Burundi, The Gambia and South Africa said last month that they would suspend their membership to the ICC, arguing that the institution is discriminating against people of colour.

"This 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 persecution and humiliation of people of colour, especially Africans," Gambia's Information Minister Sheriff Bojang said.

South Africa said that it will leave the ICC after Pretoria was criticised for ignoring a court order to arrest Sudanese President Omar Hassan Al-Bashir.

The Sudanese leader was indicted by the ICC over war crimes and crimes against humanity but South Africa gave him immunity along with delegates attending an African Union summit in Johannesburg in June last year.

Kenya, whose president Uhuru Kenyatta appeared at the ICC, is also considering withdrawal from the court.

‘'I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter,'' Kenyatta said, during a ceremony celebrating the dropping of his case over the 2008 post-election violence.

Why are African countries withdrawing from the ICC?

African governments overwhelmingly supported the international court since its creation in hopes of bringing justice to victims of the Rwandan genocide and Congo wars.

But in recent years, support has been replaced with suspicion after top African presidents and politicians were brought to the ICC courts.

In 2009, the ICC issued an arrest warrant for Sudanese President Omar Al Bashir for crimes against humanity and war crimes in the Darfur crisis. Al Bashir was the first African president convicted by the ICC.

Also, Kenyan President Uhuru Kenyatta, who was indicted in 2011, was the first head of an African state who appeared at the ICC court. He was charged in connection with the 2007-08 post-election violence in which 1,200 people died. All charges were later dropped.

Does the ICC really humiliate Africans?

Many African governments believe the ICC humiliates African people. They accuse it of unfairly targeting Africans, saying only African people have so far been convicted in its courts.

As of October 2016, nine out of 10 investigations in ICC courts have involved African people.

All three of the court's ongoing trials have involved Africans. These include the cases of former President of the Ivory Coast Laurent Gbagbo, the case of former Congolese vice president Jean-Pierre Bemba for alleged crimes committed in neighbouring Central African Republic, and that of Congolese warlord Bosco Ntaganda.

All those who have been convicted of crimes against humanity and/or war crimes are African. Ahmad Al-Faqi Al-Mahdi, an Al-Qaeda militant, was the first person ever to be found guilty for the war crime of destroying religious and historical buildings in the Malian city of Timbuktu.

"There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted," Gambian Minister Bojang said.

Former British Prime Minister Tony Blair has been mentioned frequently in these discussions as one leader who the ICC decided not to indict for crimes against humanity over the Iraq war.

Is withdrawal from the ICC an anti-imperialistic move?

But many Africans disagree with these withdrawals from the ICC. They criticise governments for disguising the basis of the decisions in anti-imperialism, saying they are extending their authority over other foreign countries.

‘'ICC withdrawal is being used by [African] dictators to appear anti-imperial while protecting their own power and hiding abuses,'' the director of African Studies at Boston University, Timothy Longman said.

The three African nations that made the decision to withdraw have different reasons for trying to avoid any international spotlight on their domestic issues.

Burundi, where ICC chief prosecutor Fatou Bensouda opened an initial probe last April, has been engulfed in a cycle of political violence since President Pierre Nkurunziza sought to extend his power in office despite constitutional limitations. Nearly 500 people were killed during these protests.

Is there an alternative to the ICC?

The African Court on Human and People's Rights (ACHPR), working under the African Union (AU), can now only rule on human rights cases, leaving out war crimes and crimes against humanity. The court does not have the institutional capacity to replace the ICC.

In 2014, AU members adopted the Malabo Protocol, with which they decided to expand the court's authority to include international criminal law. However, as of now, not a single member state has ratified the protocol.

In order to start a chamber for criminal justice, the court needs at least 15 ratifications.

Another problem the court faces is its insufficient budget. It currently receives $10 million a year from the AU.

But, if it decides to expand to the field of criminal justice, it will require much more funding, according to the senior researcher at the Institute for Security Studies in South Africa, Ottilia Maunganidze.

Author: Mucahid Durmaz and Zahid Armagan