ICC Legitimacy in Question as The Gambia, South Africa Quit the Court

The International Criminal Court (ICC) faces heightened legitimacy issues as three African states declared their intention to leave the court in October. First, Burundi announced its decision to leave, followed by South Africa and most recently The Gambia. Prior to this string of exits, no country had left the ICC since its creation in 2003. South Africa announced its withdrawal on October 24 as a member of the intergovernmental organization based in The Hague. South Africa’s Minister of Justice and Constitutional Development, Michael Masutha, justified the country’s decision to leave, arguing that the ICC’s warrant against Sudani President Omar Al-Bashir violates South Africa’s Diplomatic Immunities and Privileges Act. This act grants immunity to foreign diplomats and leaders such as Al-Bashir, despite the ICC’s call to sentence him for crimes against humanity.

The South African government issued a statement in which it claimed that the ICC is “incompatible with its efforts to mediate peace in Africa.” Despite making such a bold claim, the South African government offered no future proposal on how they plan to fill the judicial void left by their exit.

The day after South Africa announced its exit, The Gambia followed suit. Gambia's information minister Sheriff Bojang accused the ICC of singling out violations of international law by African countries while neglecting the rest of the world. Bojang stated, "This exit is warranted by the fact that the ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of color, especially Africans."

Gambia’s tense relations with the ICC arose earlier in October when Gambian President Yahya Jammeh called on the court to investigate the European Union for the deaths of thousands of African migrants fleeing to Europe. The ICC never responded to Jammeh’s request.

The ICC’s chief prosecutor Fatou Bensouda, a Gambian lawyer who once served as an advisor to President Jammeh, was quick to condemn her country’s decision and called for the president to rethink the proposed exit.

The Gambia’s exit also raises concerns over human rights violations in the country. Human Rights Watch has accused the small West African country of a large number of human right violations, including forced disappearances, arbitrary detention, and torture. Gambians fear these type of occurrences will become more frequent in the coming years, as the ICC will no longer have jurisdiction in the internal affairs of the country.

The exit of these three critical African states could threaten the legitimacy and longevity of the ICC. Several other African states have shown increased frustration with the ICC, and Kenya and Namibia warn that they will soon leave the court as well. If this continual loss of member states persists, the trend could render the ICC powerless.

At its origin, the ICC was the vision of late South African hero Nelson Mandela, who said in 1998, “Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings.” The ICC has always been an optimistic project, created from the ashes of terrible events such as the Rwandan Genocide and Apartheid South Africa. Once the source of much hope, the court now struggles to remain relevant to the members it serves.