AU Summit 2017: Africa continues pushback against ICC withdrawals

The struggle for AU consensus on ICC withdrawals

Accusing the ICC of bias in its investigations and prosecutions, a number of African leaders have used the AU as a forum to oppose the Court over the past several years. The anti-ICC campaign began after the Court issued arrest warrants in 2009 and 2010 for the president of Sudan Omar al-Bashir, and increased significantly after the ICC prosecutor brought cases against Kenyan politicians Uhuru Kenyatta and William Ruto in 2011, who would go on to become Kenya’s president and deputy, respectively. The campaign succeeded in passing successive resolutions that urged non-cooperation with ICC in the arrest of al-Bashir and suspension of ICC cases involving crimes in Darfur and Kenya, and ultimately requested an AU strategy on the ICC that included the issue of withdrawal.

However, any decision to withdraw from the Rome Statute is ultimately up to individual ICC member states, not the AU, and many African ICC states have expressed their continued support for the ICC despite rhetoric on withdrawal. In fact last year’s AU Summit saw several states oppose any move for mass withdrawal.

Further, in the wake of the announced withdrawals late last year, many African governments publically re-affirmed their support for the Court before and during the annual meeting of the ICC’s governing body, the Assembly of States Parties.

The Assembly’s general debate and special session on Africa and the ICC saw strong reaffirmations of support for the ICC and international justice from the vast majority of delegations from Africa and beyond. The vast majority of African states—including Burkina Faso, Botswana, Democratic Republic of Congo, Côte d’Ivoire, Lesotho, Malawi, Mali, Namibia, Nigeria, Senegal, Sierra Leone, Tanzania, Uganda and Zambia—reaffirmed their desire to stay part of the Rome Statute system and work for positive reform of the ICC. Many governments expressed regret about the announced withdrawals of South Africa, Burundi and The Gambia, and called for reconsideration.

So what did the AU actually decide this time around?

A strategy for withdrawal, or reform?

The strategy recommends that the AU adopt a two-prong approach on the ICC. One to look at possible legal and institutional reforms to the Court and its way of functioning. A second to enhance political engagement with relevant ICC stakeholders. 

Neither prong focuses on withdrawal as a foregone conclusion or any specific plan.

The decision also praises the spirit of cooperation attached to discussions between the AU and ASP over the past year, and foreshadows more vocal engagement by African ICC member states in the ICC governance process.

A Human Rights Watch commentary underlines that:

“the ‘strategy’ does not actually call for mass withdrawal […] but instead states: ‘Further research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required.’ Instead the document revisits AU concerns with the court— including its relationship with the United Nations Security Council and a bid to amend the court’s statute to exempt sitting leaders implicated in widespread atrocities. The document offers information about how states may withdraw from the statute, and notes that lack of adoption of AU proposals to amend the statute could be conditions for withdrawal, but says only that a “timeline for reform should be clearly agreed upon.’”

On Justice in Conflict, academic Mark Kersten argues that:

“In reading the strategy, it is difficult not be left with the impression that African states remain engaged with the ICC. It certainly doesn’t sound like they’re collectively jumping ship. That’s because the Strategy reads like a largely reasonable list of possible reforms to the Rome Statute and the Court.”

Togolese lawyer and political analyst Désiré Assogbavi adds that:

"'Collective withdrawal' from a treaty is an incorrect language. It does not exist in international law. The African Union may just be using it as an instrument of political pressure to catalyse changes in the ICC."

ICC: Is a collective withdrawal by African states possible? Listen to le Grand Dialogue (16-02-2017, French) :

Guests: Clément Dembélé, enseignant université de Metz; Mme Doubia Mama Koité, Présidente coalition malienne CPI; Diakari Poudjougo, enseignant université Bamako; et Doumbi Fakoly, Président de la ligue des écrivains du Mali.

Opposition and reservations

Human Rights Watch reported that Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia and Zambia requested more time to study it.

More positives to take away?

A number of states participating at the Summit reminded fellow delegations that the ICC is an important legal backstop for countries where domestic legal systems have been compromised.

Nigeria, where the ICC is currently conducting a preliminary examination, was among the states reported as standing firm against the Court's most vocal detractors during the Summit:

“Nigeria and others believed that the court had an important role to play in holding leaders accountable," said the Nigerian foreign minister, adding that “Nigeria is not the only voice agitating against [the withdrawal strategy], in fact Senegal is very strongly speaking against it, Cape Verde, and other countries are also against it."

The newly elected Gambian president also spoke  to state that his administration would reverse his predecessor's withdrawal announcement. The top Beninese diplomat has meanwhile indicated (French) that Benin does not expect to withdraw from the ICC either, adding that such a decision belongs to individuals states.

Going forward, on Justice Hub, Steve Lamony writes that:

“[W]ithdrawing from the Rome Statute would create an impunity gap, as there is currently no regional court for holding perpetrators accountable when they commit Crimes Against Humanity, War Crimes, and Genocide. African state parties need to show their support for the ICC at the African Union summits, Assembly of States Parties meetings, and at the UNSC and UN General Assembly meetings. In addition countries should continue to work with the ICC on promoting High level regional seminars on fostering cooperation  and joint technical AU-ICC cooperation seminars as a way of mending fences and with ICC officials at bilateral meetings with African government officials.”

Ideals and values that inspired creation of International Criminal Court still hold true – UN adviser

The UN Secretary-General's special advisor on the prevention of genocide added a similar warning: that Africa must continue to engage positively because it "cannot afford to abandon the ICC in this age of atrocities." Read more