Support for the ICC at the 15th session of the Assembly of States Parties (ASP), the tactical move by the ASP President Sidiki Kaba, and internal changes in South Africa and Gambia stalled momentum for widespread African withdrawal from the International Criminal Court (ICC). Government delegations stressed the need to listen to and to address the concerns of African state parties at the ASP, but they also committed to continue the Court’s disregard for impunity. Concerns about withdrawal spiked last fall when Burundi, South Africa and Gambia formally notified the United Nations of their intentions to withdraw from the ICC. Previously, other African states indicated that they, too, might withdraw from the Court. In Kenya, politicians introduced a bill to leave the ICC, and, in January 2016, the African Union (AU) authorized the development of a collective ICC withdrawal strategy. Now, only Burundi is on the path to continue its process of withdrawal from the ICC.
The process of withdrawal in South Africa confronts serious challenges. The opposition party is challenging in court the constitutionality of plans to withdraw from the ICC. Parliament did not receive a bill about withdrawal before the government sent notification of withdrawal to the UN. Yet, South African withdrawal from international treaties requires parliamentary approval. Although plans to withdraw in South Africa continue, there is strong disagreement in the South African Parliament. Additionally, at the last ASP session, the South African Attorney General stated a desire to avoid withdrawal from the Court.
Recent regime change in the Gambia also suggests a reversal in position. In December 2016, the new Gambian President, President Adama Barrow, said Gambia would not withdraw from the Court. In the interview with Deutsche Welle Africa, he said:
“There is no need for us to leave the ICC. The ICC is advocating for good governance. That is our principle. We are already part of the ICC. We will not leave. That is not possible.”
Many African states are not eager to leave the Court. Since October 2016, no additional states have announced their withdrawal from the ICC. Instead, at the last ASP session, a majority of African States stated their intentions to remain members of the ICC. Furthermore, there is little indication that Kenya, one of the loudest advocates for departure from the Court, plans to withdraw from the Rome Statute soon. The Kenyan bill to exit the ICC recently expired, and Kenyan Civil Society called for African states to remain in the ICC to improve it at the last ASP meeting. Furthermore, within the AU, there is a clear division about the issue. Many members of the AU are opposed to leaving the ICC, as shown by the debates within the AU. Moreover, the January 2017 AU Summit had signifcantly less anti-ICC rhetoric than 2016.
There has been discussion about a collective AU withdrawal strategy; however, legally, the AU cannot collectively withdraw. Each state is sovereign. So, each state would have to make its own decision to leave the Court and separately notify the UN of its withdrawal from the Rome Statute. This would impede any plans for widespread withdrawal.
If Burundi does not reverse its withdrawal, or other states follow suit in withdrawing, the Court will still have some sources of jurisdiction in the former member. A state’s withdrawal from the Court will not enter into force until one year after it notifies the UN Secretary-General. Therefore, if crimes against humanity, war crimes or genocide were committed between when the ICC began its jurisdiction over that state up until a year after notification of the UN, they would remain under the Court’s jurisdiction. Additionally, if states withdraw from the ICC, the UN Security Council can refer the state to the Court, or a state can accept the Court’s jurisdiction on an ad hoc basis and refer itself.
The impetus for African withdrawal was the ICC arrest warrant for Omar al-Bashir, the president of Sudan. South Africa announced its intention to leave the Court after receiving criticism for its failure to arrest Bashir when he was in South Africa. South Africa argued that Bashir’s head of state immunity in South Africa justified its failure to comply with Rome Statute commitments.
Additionally, the arrest warrant for Bashir made state leaders realize their vulnerability to accountability for crimes against humanity, war crimes, and genocide. The investigation into current President of Kenya, Kenyatta, a sitting leader, only increased this tension. The calls for deferment of ICC cases against state leaders reflect the growing discomfort with accountability. The only alternative would be impunity for state leaders, which would destroy the Court’s reason for existence.
African states proposing withdrawal have argued that the Court is an imperialistic and western institution. The former Gambian Information Minister even referred to the ICC as an “International Caucasian Court,” when justifying Gambian withdrawal. However, states, civil society and individuals from the African continent were key players in bringing the Court into existence. Senegal was the first state to ratify the Rome Statute. Currently, key players at the ICC are nationals of African states. Prosecutor Fatou Bensouda is Gambian, Assembly of States Party President Sidiki Kaba is Senegalese, and five ICC judges are from the African continent. Furthermore, there is support for Africa within its civil society. Thus, the African state parties to the Rome Statute have distinguished roles in leading the rule of law movement.
Proponents for African withdrawal from the ICC also cite the disproportionate amount of cases against African nationals at the ICC. They argue that the ICC is unfairly targeting Africa and that the Court should prosecute crimes occurring on other continents. Most supporters agree that the ICC should expand its prosecutions beyond Africa, and the ICC has increased its efforts to do so. Yet, it is not true that the ICC is unfairly targeting Africa. The prosecutor did not initiate most of the situations under investigation by the ICC. Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali referred their situations to the Court. The Security Council has also referred several situations to the ICC, including Libya and Sudan. In fact, the majority of situations under preliminary examination at the ICC are not African states. However, reducing ICC efforts to procure accountability for genocide, crimes against humanity or war crimes in Africa would damage the struggle against immunity in the continent and the rule of law movement. The response to such criticism should not call for enabling impunity for serious crimes in Africa but for increasing accountability elsewhere.
These events indicate that there may be a dwindling momentum for widespread African withdrawal. The ASP session indicated that the arguments for withdrawal are self-serving and weak.