An African assault on the International Criminal Court fizzled into a mild retreat on Thursday as the court's biggest critics abandoned their threats of quitting.
Two of the most powerful African nations, Kenya and South Africa, have led the attack on the ICC, accusing the international court of being biased against Africa. Both have threatened to become the first nations ever to withdraw from the 123-country court.
But by Thursday, at the end of the court's annual assembly of member states in The Hague, both Kenya and South Africa had quietly shelved their threats. In exchange, Kenya won a minor concession on the evidence rules for the court's current prosecution of Kenyan Vice-President William Ruto, who has been charged with murder and other crimes against humanity in connection with a wave of killings after Kenya's 2007 election.
South Africa's ruling party, the African National Congress, had formally approved a decision to withdraw from the ICC last month. But when the South African Foreign Minister showed up in The Hague for a speech to the annual assembly, she made no mention of the ruling party's decision.
In the end, the only concession to the court's critics was a single paragraph in a non-binding report that the assembly adopted on Thursday night at the end of its session. The paragraph simply reaffirmed the assembly's earlier interpretation of the rules about evidence from witnesses who had recanted their testimony.
Supporters of the Kenyan Vice-President immediately spun this as a victory for Kenya, but analysts noted that the report was non-binding and did not have the same force as a formal resolution. Moreover, the ICC's judges could ignore the report and make their own ruling, analysts said. And the report emphasized that even the assembly's legal interpretation must be consistent with the Rome Statute, the court's founding treaty.
Kenyan media have reported that the Kenyan government spent about $1-million (U.S.) to send 60 politicians and officials to The Hague to lobby for its demands at the ICC assembly.
But observers said the Kenyan government caused a backlash among other ICC members with its theatrical and noisy demands and threats, which seemed to be a challenge to the court's independence. One scholar, Mark Kersten, said he checked 39 speeches by ICC members and only one – from Uganda – supported the Kenyan demands.
Kenya's Foreign Minister Amina Mohamed sounded ambivalent about the ICC when she gave an interview this week to a blog called The Hague Trials Kenya. "We don't have an anti-ICC push," she said. "And the ICC is our court … We treat it as one of our courts."
South Africa's Foreign Minister Maite Nkoana-Mashabane was equally ambiguous in her speech last week to the ICC assembly. Despite the ruling party's decision to quit the court, she failed to make any clear statement on South Africa's intentions. Instead she criticized the court as "one-sided" and "unfair" without saying what South Africa would do if it failed to achieve its demands.
"This is our court and we have a responsibility to interrogate whether this institution is still reflective of the principles and values which guided its creation," she said. "We are at the crossroads. The ICC is in critical need of emergency support."
Ms. Nkoana-Mashabane noted that the United States, Russia and China do not belong to the ICC, and she complained that they have "the ability to protect themselves and their allies from the reach of the court." She asked why the ICC has failed to open cases in Afghanistan, Iraq and Palestine after long periods of preliminary study. "Is it because those investigations have the potential to implicate the 'great powers'?" she asked in her statement.