Why an African Mass Withdrawal From the ICC Is Possible

In what seems to be a continental domino effect, three African states have publicly declared their intended withdrawal from the International Criminal Court ( ICC) over the past month. The court has repeatedly been criticized by African states as an inefficient, neo-colonial institution of the Western powers to try African countries.

This argument is supported by the fact that nine of the ten situations under investigation, with three others under preliminary investigations, involve African countries.

However, as noted from a social shorthand by the European Centre for Development Policy Management (ECDPM), "the rift is often caused by a neat difference in priorities: where one gives more importance to peace processes, while the other gives more weight to obtaining [international] justice."

African state parties to the Rome Statute make up the biggest regional membership, comprising 34 of the 124 members. But things are changing. From 2009, African countries have called for collective withdrawal from the ICC. Although some countries have pushed back, such as Botswana, and others have entered reservations, the majority seems to be in support of the withdrawal. This follows a long process of negotiations spearheaded by the AU.

'Judge, jury and executioner'

Burundi was the first to declare its intention to withdraw on October 12 and filed a formal withdrawal with the U.N. Secretary General (UNSG). Burundi cited that it's exercising a sovereign right by withdrawing from the Rome Statute that created the ICC. Although the true motivation is believed to be the fact that on April 25, the ICC's Office of the Prosecutor opened a preliminary investigation on alleged violations of the rule of law and human rights in the country.

Burundi's reasons for withdrawing were that its membership couldn't be justified as the preliminary investigation of Burundi constitutes a violation of complementarity with national courts and sovereignty.

South Africa was the first country to formally withdraw from the ICC in an Instrument of Withdrawal dated 19 October 2016. Unlike Burundi, the withdrawal decision was not voted upon by Parliament that has legal implications on whether Parliamentary approval was required before hand. South Africa cited a disconnect in the interpretation of means of conflict resolution with the ICC as their reason.

Gambia declared its withdrawal from the ICC on 25 October 2016. Gambia's stated that the ICC "is in fact an International Caucasian Court for the persecution of people of colour including Africans". Gambia's decision to leave is viewed as a big blow to the ICC as the country hosts the headquarters of the African Commission on Human and Peoples' Rights. While a former justice minister, Fatou Bensouda, is the current ICC chief prosecutor.

Reports indicate that Namibia, Kenya and Uganda are contemplating withdrawing from the ICC. As we approach the 15th session of the Assembly of States Parties, it is left to see which countries will join the withdrawal move. However, Africa is heterogeneous and not all countries are in favour of a withdrawal. Botswana has expressed its reservations about the move.

The crux behind the withdrawals

The tension between the AU and ICC is fuelled by the fact that the ICC is indicting sitting heads of state. African states have argued that the indictments interfere with the ongoing peace processes to mediate conflict situations. African leaders have also argued that there are legal mechanisms at national, regional and continental levels that can handle 'African' cases. The ICC was meant to be a court of last resort.

The United Nations Security Council (UNSC) has also been caught up in the ICC debate in Africa. The UNSC has been criticized for not referring international crimes that are occurring in other places of the world to the ICC. The Libya, Kenya and Sudan cases before the ICC were referred there by the UNSC.

Furthermore, the failure by the UNSC to defer the cases before the ICC at the request of the AU, has led to the perception that the UNSC is not considering the request of African states.

Exploring other options

The AU adopted the Malabo Protocol in June 2014, giving the African Court of Justice and Human Rights (African Court) jurisdiction over international crimes including genocide, crimes against humanity and war crimes, and the crime of aggression. However, no country has ratified the Malabo Protocol, which means that if the mass withdrawal takes effect some African states will not have an existing court to deal with international crimes. More so, the Malabo Protocol grants immunity to sitting heads of state that is contrary to the ICC's jurisdiction.

So how will justice be accessed? One option could be to focus on Hybrid Courts. The AU has been instrumental in establishing hybrid courts, for example the Extraordinary African Chambers in Senegal, which successfully prosecuted and sentenced Hissene Habré for crimes committed whilst he was president of Chad. The AU is also in charge of establishing a Hybrid Court of South Sudan, which will try perpetrators of international crimes. The Hybrid Court " currently represents the most viable option for ensuring accountability for crimes committed during the conflict, as well as for deterring further abuses".

However, hybrid courts are not immediately activated. In the case of the Extraordinary African Chambers, the case of Hissene Habré took 25 years before it was brought to trial. The Hybrid Court of South Sudan, agreed in the Peace Deal that was signed in August 2015, is also yet to be established. Financing and political divisions within South Sudan are said to be behind the delay.

Not a 'happily ever after …'

According to Article 127 of the Rome Statute, withdrawal takes effect one year after the date of receipt of the notification by the UNSG (unless a later date is specified). However, a state is not discharged from its obligations to pay all accrued financial arrears.

Furthermore, any criminal investigations that have commenced prior to the withdrawal shall continue, and the country has an obligation to cooperate with the ICC on matters that were commenced before the date of withdrawal becomes effective.

The wording of Article 127 is framed to prevent cases where leaders under investigation use withdrawal from the ICC to avoid its jurisdiction.

This means that before the effective date of withdrawal, Burundi, for example, will still be under the ICC's jurisdiction with regard to the current preliminary investigation. If the ICC Prosecutor decides to open a formal investigation into Burundi, they will still be subject to the ICC's jurisdiction. Burundi, South Africa and Gambia have a continuing obligation to cooperate with the ICC on ongoing situations and the arrest warrants issued by the court.

The withdrawal of African countries from the ICC is symptomatic of tensions in the international justice system. Whether African countries opt for a mass-withdrawal or not, the challenge for the future is how to build a system that is just and is most likely to bring justice to the victims of conflicts in Africa.

Philomena Apiko, a Ugandan national, is a Junior Policy Officer at the European Centre for Development Policy Management (ECDPM). Luckystar Miyandazi is a Kenyan national and Policy Officer at the ECDPM. Faten Aggad-Clerx is an Algerian national and Head of the Africa s Change Dynamics Programme at the ECDPM.