The cases of Sudanese President Omar Al-Bashir, and Kenyan President Uhuru Kenyatta and vice-President William Ruto, indicted at the International Criminal Court (ICC) for crimes against humanity and, the former, also for genocide, marked a turning point for Africa’s continental engagement with the ICC. In the past few years, the Court was accused to have biasedly targeted African nations in the fourteen years of its existence, creating a sense of discontent and mistrust that gave rise to a continental mobilisation leading to requests for reform and actions to withdraw from the international body. This mobilisation not only took place within individual countries but was also firmly upheld by the African Union (AU).
Despite these seemingly tense recent relations, it is worth reminding that the African contribution to the establishment of the ICC was instrumental. Seventeen African states were among the first sixty that ratified the Rome Statute, i.e. the international treaty establishing the International Criminal Court, thus contributing to the achievement of the threshold necessary for the statute to become effective. The enthusiasm for the creation of the ICC rested in the perception of its potential to transcend global power politics and provide a solution for the continent’s injustices. As of now, African states form the largest regional bloc of ICC member states (34 out of 124 state parties, which in turn represent 64% of 193 states in the world).
Similarly, the African Union was initially a strong supporter of the ICC. More than two-thirds of the members of the African Union are parties to the Rome Statute. Moreover, most of the African situations which have been investigated by the ICC since 2002 were referred to the Court by the very same nation where the abuses occurred (so-called self-referrals), demonstrating how the Court was deemed, by Africans themselves, a legitimate tool of justice.
Nevertheless, over the years, the Assembly of the AU has adopted various resolutions critical of the ICC and its practice. First, it discouraged the prosecution of Heads of State by the ICC. Then it engaged in talks with the UN Security Council to push for the reform of the ICC. Finally, it started encouraging African states to withdraw from the ICC, an effort that culminated in a resolution adopted by Heads of State and Government at the last African Union Summit, held in January 2017, on a strategy for withdrawing from the ICC.
The AU’s ‘ICC withdrawal strategy’ is not binding on African states, i.e. individual states can act independently of it, disregarding the AU’s collective stance. Nonetheless, the AU’s decision – which must indeed be understood as a decision taken by individual states with competing views, rather than a unitary collective body – needs to be taken into serious consideration since it emphasizes that African states’ concerns remain formally valid and must be addressed at the appropriate level so to reduce the perceived or real shortcomings of the international justice system while potentially avoiding its dissolution.
Following the release of the AU’s "ICC withdrawal strategy", Nigeria, Senegal, and Cape Verde entered formal reservations to the decision adopted by the Heads of State. Liberia more specifically entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it. These countries, together with another dozen, among which most notably are Botswana and Senegal, formed the group of "ICC supporters", voicing their concerns against withdrawal. On the other hand, another group of states actively advocated leaving the ICC, headed by Kenya, Burundi, The Gambia and South Africa. Kenya played an ambivalent role by first intervening at the 26th AU Summit in 2016 suggesting African collective withdrawal, but then coming short of taking effective action, rather letting transpire the desire of the Kenyan government to push for changes at the ICC, while working from within. The Gambia and South Africa effectively initiated the process of withdrawal but later reversed it. Burundi is the only African country currently carrying on formal withdrawal procedures.
The reasons for these last three countries to distance themselves from the ICC, and commence withdrawal procedures, varied. In the case of Burundi, the government claimed that the ICC is not an "international" system of justice, but rather an instrument of powerful countries used to punish leaders who do not comply with Western values and interests. The decision to withdraw was arguably a reaction to the fact that in 2016, ICC Prosecutor Fatou Bensouda opened a preliminary examination into possible crimes against humanity committed since April 2015. The country has become since then the stage of continuous acts of killing, rape, disappearance, torture, arbitrary arrest, and proved to be unable to conduct credible investigations due to widespread manipulation by the ruling elite of the judicial system.
The Gambia, similarly to the case of Burundi, decided to withdraw from the ICC due to the perception that the ICC is racist, prosecuting and humiliating "people of colour, especially Africans". This perception was reinforced after going unheard in its request to the ICC to investigate the European Union for the deaths of African migrants crossing the Mediterranean Sea. At the same time, the twenty-two-year rule by (now former) President Jammeh was marked by a questionable human rights’ record, which might be more likely to come under the scrutiny of the ICC given that the new ICC prosecutor, Bensouda, is a former Gambian justice minister. The Gambia, however, started reversing the process that was initiated to commend the withdrawal, after President Jammeh stepped down following election defeat, and the newly elected president, Adama Barrow, acknowledged the importance of the existence of an institution like the ICC.
South Africa, a supporter of the ICC since its onset, refused, in June 2015, to arrest Sudanese President Omar al-Bashir while he was in the country to attend an African Union summit. The ICC had previously issued two warrants of arrest against him for crimes against humanity and genocide. The decision not to cooperate with the ICC was justified by South African authorities claiming that al-Bashir had immunity as the head of a member state. The South African executive’s non-arrest decision seemingly prioritised the country's regional political reputation and the AU's position, over its global reputation as a human rights supporter. However, the non-arrest of al-Bashir stirred up debate within the country, and the journey of withdrawal was halted by the North Gauteng High Court in February 2017. The High Court ruling affirmed that the request to withdraw from the Rome Statute was unconstitutional since the executive does not have the powers to withdraw from international treaties unilaterally and that approval must be sought in parliament.
These cases shed light onto the fact that the AU’s decision to withdraw is nothing more than the sum of individual countries’ internal negotiations: at "home", political, economic and social elites struggle to defend different meanings of impunity, deterrence, sovereignty, and to face their consequences. Moreover, a close look at the AU’s "ICC withdrawal strategy" reveals an evident incongruity, of terminology if not of content. While it devises legal, institutional and political strategies to modify the relationship with the ICC, it does implicitly suggest doing so from within, hence being far from imposing a "collective" withdrawal. Amendments to the Rome Statute, reform of the United Nations Security Council, enhancement of African representation at the ICC are some of the strategies outlined in the AU’s "withdrawal strategy". These, however, clearly require the continued engagement of African states parties within the Rome Statute system making it impossible to, for instance, enhance African representation at the ICC without being part of it. Hence, while a mass African withdrawal from the ICC is neither formally considered by the AU – or by the majority of member states – nor actually happening, the ambiguity of discourses challenging the legitimacy of the international criminal justice system reveals Africa’s assertive desire for the latter to become more inclusive.
Maddalena Procopio, Assistant for the Hybrid Justice Systems Project, London School of Economics and Associate Tutor at PAIS, University of Warwick
 Assembly Decision Doc. EX.CL/1006(XXX) of 31 January 2017 on the International Criminal Court. Retrieved on 2 March 2017. Available at: https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf