Not All it’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy”

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

I want to make something clear from the outset: what follows is not a defence of the International Criminal Court (ICC). Seriously. It may sound like one or be interpreted as one, but it is not one. What follows is an attempt to clarify what actually happened last week when states at the latest African Union (AU) summit adopted an “ICC Withdrawal Strategy”. In doing so, they set parts of the internet ablaze with a new round of reports of a mass exodus of states from the ICC and the Court’s pending demise. It’s not going to happen — at least not now.

First, let’s tackle the actual resolution of the AU adopting the ICC Withdrawal Strategy. It is purposefully weak. Like, really, really weak. The non-binding resolution includes reservations from eight states. As Elise Keppler has pointed out, “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.” That’s a lot of reservations.

Further, the resolution’s operative paragraph declares that the Assembly of the AU “ADOPTS the ICC Withdrawal Strategy along with its Annexes and CALLS on member states to consider implementing its recommendations”. There are few things weaker in the vernacular of international legalese than calling on states to consider something.

But what about the ICC Withdrawal Strategy that was adopted? Its title certainly sounds menacing. But in substance, it is anything but. For one, it doesn’t actually call on a mass withdrawal of states from the Court. Here’s what the Strategy lists under “objectives”:

screen-shot-2017-02-06-at-3-02-22-pmIn 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. Indeed, the arguments contained within the Strategy should be taken seriously and continue to be debated. There are at least a handful that should be acceptable to the Court and its champions, such as the long-standing request from Kenya to include “regional criminal jurisdictions” in the section of the Rome Statute’s pre-amble pertaining to the principle of complementarity. More attention also needs to be paid to the fact that the majority of the grievances and concerns expressed within the Strategy ultimately relate to the ICC’s relationship with the UN Security Council.

Perhaps the most unfortunate aspect of the Strategy is its misleading title. It is difficult, if not impossible, to read it and conclude that it proposes a roadmap for states to withdraw en masse from the Court. It really should be called “ICC Reform Proposals” or something similar. However, is clear that certain states prefer to muddy the waters and perhaps even want the media and observers to dramatize the possibility of a mass withdrawal. Advocates of the Court shouldn’t play into that game and, instead, ought to focus on encouraging African ICC member-states to advocate more accurate, and less inflammatory, titles for their documents and resolutions. That alone would help re-balance the narrative.

Finally, it is worth stressing that, irrespective of their interest in the ICC, some African states have expressed concern over the AU’s attempts to influence their membership in the Court. Geoffrey Onyeama, Foreign Minister of Nigeria, which is under preliminary examination by the ICC, described his country’s views:

Nigeria is not the only voice agitating against it; in fact, Senegal is speaking very strongly against it. Cape Verde and other countries are also against it. What AU did was to set up a committee to elaborate a strategy for collective withdrawal. After, Senegal took the floor, Nigeria took the floor, Cape Verde and some other countries made it clear that they were not going to subscribe to that decision. Each country freely and willingly acceded to the Treaty and not all of the members of the AU acceded; each country acceded individually, exercising its own sovereign right. So, if each country wants to withdraw, it has the right to do that individually. AU, which was not a party to the Rome Statute that established the court, should not be developing a strategy for a collective withdrawal for something that each country entered into individually. Those who feel they want to withdraw should do that individually.

In assessments of the Africa-ICC relationship, an almost universal truth of international relations is often ignored: states don’t like being told what to do by supra- and international organizations. African states are no different. They respect the sovereign right of states to sign up to whatever treaties they want to and their sovereign right to withdraw from them. But it irks them to be told what to do — including on the ICC.

In the end, then, the AU adopted a resolution with eight reservations that recommended that its member-states consider withdrawing from the ICC by adopting a non-binding “ICC Withdrawal Strategy” that should probably just be called “ICC Reform Proposals”. The result was purposefully incendiary but weak.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, Nigeria. Bookmark the permalink.

3 Responses to Not All it’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy”

  1. el roam says:

    Thanks for the post Mark , I disagree to some extent . One should not forget, the real trigger was the escape of Omar Al Bashir from the pending arrest warrant in the AU summit in South Africa at the time. That gave the whole momentum . South Africa , claimed that , it does observe , real conflict between CIL has to do with immunity of heads of states ( acting ) and , arrest warrants , issued by pre trial chamber . From then and on , a domino effect , started to come to effect . So , One state , induced others to follow , and cutting short dissonance not to withdraw naturally .

    And , The real story of the ICC , is in fact : CIL , gaining momentum , more and more , critical mass of states , until well established . This can be pretty bad, setting back such accumulation of critical mass .

    And in fact , reading the strategy guidance , one could read , I quote :

    ” Further research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required in order to seek out additional guidance regarding the potential emergence of a new norm of customary international law.”

    End of quotation :

    One should pay attention , they claim clearly , not only that the ICC is biased and partial towards them , but the whole international system and the SC , I quote :

    ” In this regard , the decisions of the United Nations seucrity council ( UNSC) are made on the basis of the interest of its permanent members rather than the legal and justice requirements .”

    End of quotation :

    Yet , one can clearly conclude :

    If not the ICC , not the UN , not the SC , then , there is no , and can’t be any international justice , maximum , hybrid one ?? So , it is also international one , and how otherwise ?? Universal jurisdiction of states ??

    So , clearly , they find it hard to face justice , that’s it !! Luis Moreno Ocampo was partial according to them , so , a Gambian prosecutor appointed ,and , last time checked , Gambia is an African state , So , what else ?? She is the Boss now !! Then , what else ?? Lets locate the court in the African cruel savanna , and that’s it !!

    Well , one scroll , can’t have it all here …..


  2. Pingback: Withdrawals from the Rome Statute: Continuing the saga of institutional (il)legitimacy |

  3. Pingback: Withdrawals from the Rome Statute: Continuing the saga of institutional (il)legitimacy - Michigan Journal of International Law

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