How Three Words Could Change the ICC-Africa Relationship

(Photo: Getty Images)

Much of the fraught relationship between the International Criminal Court (ICC) and African states hinges on perceptions and misperceptions of the Court’s role on the continent. There are so many conflicting narratives of the ICC’s impact in Africa, so many divergent views, such little transparency, and such varied commitment from African governments, that it is hard for the most ardent of followers to make sense of the ‘core’ of the issues.

Think back to October and November of 2016. Burundi signalled that it would withdraw from the ICC. Not to be outdone, the South African government frenetically elbowed its way in front of Burundi in order to be the first state to leave the Court. The Gambia soon followed suit. States had previously dropped hints, and at times threatened that they would withdraw from the ICC. But no one predicted this spate of withdrawals or this rather awkward grouping of states abandoning the Court. Everyone wanted to know why, all of a sudden, these three states were leaving the ICC. What was at the core of their beef with the institution?

Burundi made some sense. It was threatened by the very real possibility of an ICC investigation and its brutal president, Pierre Nkurunziza, likely acted out of fear for what the Court’s ongoing preliminary examination might bring. The Gambia, then ruled by Yahya Jammeh, who is now exiled in Equatorial Guinea after being deposed earlier this year, also fit the profile of a dictator opposed to global justice. But, at the same time, The Gambia was no where near the Court’s radar; unlike Nkurunziza, Jammeh had nothing to fear from the ICC. South Africa made even less sense. Sure, they had their issues with the ICC over the visit of Sudanese President Omar al-Bashir and their obligations to arrest and surrender him to the ICC. But the issue didn’t — and doesn’t — seem pressing enough to risk the diplomatic, legal, and political fall-out of ditching the Court altogether. Other issues, like concerns over the effects of the ICC on peace processes and conflict resolution, or anger that the Court hasn’t taken African concerns seriously, are important. But they also don’t seem to justify such dramatic action. Fast-forward six months and all of this is only more peculiar today. The Gambia has re-stated its commitment to remaining in the ICC, and South Africa has, at least for the moment, decided not to withdraw from the Court. That leaves Burundi as the sole flag-bearer of the ICC withdrawal movement. Moreover, states that everyone predicted would be filing out the door — Kenya, Namibia, and Uganda in particular — haven’t moved an inch towards the ICC withdrawal door.

On some level, it may be that there simply isn’t any neat-and-tidy explanation for why the states that decided to withdraw did so. In international relations, we tend to assume that states act consistently as rational actors following heaps of cost-benefit analyses to determine their policy preferences. It isn’t clear that this transpired so neatly in the withdrawal countries. There were undoubtedly long-standing concerns held by African states. Many also felt those concerns were being actively ignored by the Court and many of its states, many of which were left festering by a community of ICC proponents that preferred to blame “bad apples” for African dissent. Some form of confrontation with the Court has long been brewing. But decisions on the ICC are often driven by politics and sentiment and only subsequently justified legally. This, of course, makes it challenging for those proponents who agree that the ICC can be improved and want to work with a constituency of African states to address their legitimate concerns. They need something to work with.

Somewhat counter-intuitively, the clearest glimpse into the state-of-mind of African governments didn’t actually come from any of those states that initiated their withdrawals from the Court in 2016. It came from the Open-Ended Committee on the ICC at the African Union (AU). This past January, at the AU’s summit in Addis Ababa, African heads of state passed a motion endorsing a so-called “ICC Withdrawal Strategy”. The strategy document had been requested by the AU and, in advance of the 2017 summit, it was drawn up by legal officers employed by the AU. It spelled out a laundry list of concerns regarding the functioning of the ICC. Despite its inflammatory name, the document is extremely useful for those interesting in ‘problem-solving’ tensions between the ICC and Africa. Not all of the proposals within it are feasible or desirable for the ICC. Outright jettisoning the warrant for al-Bashir comes to mind. But a lot of the proposals are useful, including but not limited to: dealing with the relationship between the ICC and the UN Security Council; addressing the prickly question of head of state immunity for indicted leaders of non-ICC member states; expanding complementarity to take into consideration regional courts; and ensuring that Article 16 requests to temporarily defer ICC investigations or prosecutions are taken seriously and thoroughly responded to.

As I have previously argued, the ICC Withdrawal Strategy would actually be better, and more accurately, referred to as an “ICC Reform Package”. It is, in essence, a bargaining position. Its current title not only fails to reflect the report’s content but has also had the effect of setting off a new round of media stories suggesting that African states were leaving the ICC en masse and that Court’s very existence was under threat. The fact that the Strategy explicitly declared that there was no lawful basis for mass withdrawal and reads like a good-faith attempt to engage on these issues, was ignored.

All sides — the ICC, its states parties, civil society groups, African states and the AU — need to take responsibility for the current impasse and work to reduce unnecessary tensions. That would create the space to finally address the legitimate concerns expressed by African states. A useful act of good faith on the part of AU states would be to listen to their legal advisers and researchers who led an internal effort to choose a title that would be less incendiary and reflect the ICC Withdrawal Strategy’s substantive content. In this round, that battle was lost after some African states insisted that the AU had specifically requested the drawing-up of an “ICC Withdrawal Strategy” and so the wording could not be altered.

In addition to the ‘fake news’ media coverage the ICC Withdrawal Strategy inspired, it also had the paradoxical, and likely unhelpful, effect of blurring the lines between those African states determined to stay in the ICC and those who are more ambivalent about their membership. A significant number of African states entered reservations into the AU decision to pass the Strategy. Others supported its adoption. But because of the title, as well as the reality that many political representatives hadn’t actually read the substance of the report, states ended up on opposite sides. Those states that had intended to support an actual Withdrawal Strategy have now endorsed a valuable working document that should lead to continued engagement between the ICC and African states. Those that entered their reservations did so largely because of the title and yet are precisely those states best placed to lead the type of engagement with the Court spelled out in the Strategy.

The African Union’s ICC Withdrawal Strategy is yet another lesson in the reality that titles matter. The media, interested observers, and diplomats will read books by their covers or, more accurately in this case, reports by their titles. This also serves as an example of how moving the ball forward on the ICC-Africa relationship requires constantly untangling perceptions and tackling misperceptions. A solid place to start, for African states as well as other ICC member-states, would be to invest some diplomatic muscle into getting the “ICC Withdrawal Strategy” renamed. It is, not incidentally, in the interests of all parties.


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, South Africa, UN Security Council. Bookmark the permalink.

4 Responses to How Three Words Could Change the ICC-Africa Relationship

  1. el roam says:

    Thanks for the post Mark , I have a different angle or view with all due respect :

    All started with the failure or default of South Africa to arrest Omar Al Bashir . One should remember , even if such warrant of arrest , had been issued against an African state member to the ICC , while attending the Au summit in South Africa ( 2015 june ) South Africa , wouldn’t arrest the head of state in such case . The argument of South Africa, for avoiding or not carrying out the arrest warrant, had or was based upon: Conflicting international obligations (means CIL immunity) and also, that the African delegations, enjoyed immunity as such (rejected both by the court of course).

    However , when a state like South Africa , seeks to become leader of the continent , let alone while hosting such summit , It can’t expect from its point of view , to arrest an African head of state , hand him over to the ICC , and yet , to preach of : African unity , African solidarity , prospering continent and so forth cliché ….

    Now , when the utmost Western state in Africa ( South Africa ) is ignoring Western international law and obligations , and head on so , it is opening surly the gate for flood ahead to come , easier applied then for : Gambia , Burundi ,and such , one even wouldn’t know the mere existence of such states let alone the very location .

    Second , just worth to note :

    The executive branch hasn’t changed his mind ( South Africa ) concerning withdrawal , but , the supreme court there , has ruled simply , that even preliminary notice ( to the UN secretary ) needed approval of the parliament . That is all !! But , the train is on ….

    Third : Gambia , wasn’t under the Radar ,but above : the ICC prosecutors , were observing and noticing that oppression should calm down , and if not , they shall consider action . here for example :


  2. Pingback: Negotiated Engagement — The African Union, the International Criminal Court, and Head of State Immunity – Ben Lee

  3. Pingback: Negotiated Engagement — The African Union, the International Criminal Court, and Head of State Immunity – Jehtro Lewis – Blog

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