KELLY MCEVERS, HOST:
The International Criminal Court was created to prosecute powerful figures, politicians, warlords for horrendous acts like war crimes and genocide. But 14 years on, the court which is based in the Hague is losing members – first Burundi, then South Africa said they would pull out. Other African countries have said they might do the same.
I talked to Alex Whiting about this. He’s a professor at Harvard Law School who used to work in the Office of the Prosecutor at the ICC. And we started with Burundi’s decision to leave the court.
ALEX WHITING: Last April, the prosecutor at the International Criminal Court announced that she was starting a preliminary examination into crimes, murder, torture, sexual violence that occurred in Burundi, and the government has apparently decided that rather than face that inquiry and face potential accountability, it will instead pull out of the International Criminal Court and avoid any kind of accountability.
MCEVERS: So it seems like a fairly straightforward decision. What about South Africa? Their decision to withdraw I understand comes after a visit there last year by the Sudanese president. What happened there?
WHITING: The story with South Africa is a little bit more complicated because of course South Africa’s not under any investigation by the court. But Omar al-Bashir visited South Africa in June of 2015. And Bashir is himself wanted on an arrest warrant by the International Criminal Court, and the government failed to execute the arrest warrant of the International Criminal Court and arrest him and instead allowed him to leave the country.
And they were called to task by the domestic courts for failing to honor their international and domestic legal obligations to arrest and also for failing to abide by a court order to keep him in the country while the issue was sorted out. And I think it’s in light of this embarrassment domestically that the government has decided to itself withdraw from the court.
MCEVERS: And now, you know, we’ve got other countries in Africa – Kenya, Namibia, Uganda – talking about leaving, and there’s this claim that there’s bias, that the court is biased against African nations.
WHITING: It is true that 9 of its 10 current investigations are in Africa, but it’s not a result of bias. It’s because the court can only prosecute where it has jurisdiction and where it has a reasonable prospect of having successful investigations. And today, those cases have been in Africa.
MCEVERS: Give us some examples of where that wouldn’t apply.
WHITING: The obvious candidate is Syria, where there’s evidence of massive crimes being committed. But the court doesn’t have jurisdiction in Syria, whereas it does have jurisdiction in Africa.
MCEVERS: The United States has not joined the court – same with China, Russia, Israel, many other countries. Does this now give them more reason not to join?
WHITING: No, I don’t think so. I think it would be a mistake to see this event of South Africa, Burundi, maybe a couple of other African countries deciding to leave the court as catastrophic or the end of the International Criminal Court. The court has been in existence only for 14 years.
And if you take the long view, countries like the United States and China and Russia have to decide that either joining the court or finding other ways to ensure that there is international criminal accountability in places like Syria and other places around the world – and that’s, to bring it back to the question about Africa – that’s the real problem. The real problem is not a bias of the court, but the real problem is the uneven justice around the world.
MCEVERS: Alex Whiting is a professor at Harvard Law School. Thank you very much.
WHITING: Thank you. It was a pleasure.
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