A common position by African countries on mass withdrawal from the International Criminal Court will not be reached until June when a committee tasked to engage the UN Security Council reports back.
Contrary to reports that 34 African countries resolved during the 26th African Union Summit in Addis Ababa in January to withdraw from the Rome Statute that established The Hague-based court, a report of the meeting indicates that the leaders only mandated the Open-Ended Committee of Foreign Affairs Ministers to discuss the intention with the UNSC.
The AU Peace and Security Council will then consider the foreign ministers’ draft on the ICC Action Plan in order to table recommendations for consideration at the next AU summit in June.
The committee, led by Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus, will engage with the UN Security Council on the previous decision for deferral of the ICC proceedings against President Omar al-Bashir of Sudan and Kenyan Deputy President William Ruto in accordance with Article 16 of the Rome Statute.
The article stipulates: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
At the Summit, the leaders adopted a proposal by Kenyan President Uhuru Kenyatta, who has been lobbying other African leaders to withdraw from the ICC in protest against the continuing trial of Mr Ruto and journalist Joshua arap Sang.
President Kenyatta had asked the African leaders to reaffirm their commitment to the Malabo Protocol of June 2014, which called for the global standard for the immunity for heads of state to also apply to Africa.
But the campaign for mass withdrawal from ICC, spearheaded by Kenya and South Africa, will be further complicated by the failure by most African states to sign the protocol expanding the jurisdiction of the African Court on Human Peoples’ Rights (ACHPR) to include international crimes as an African alternative to the ICC.
However, only Benin, Congo, Guinea-Bissau, Kenya, Ghana, Sierra Leone and Mauritania have signed the protocol expanding the jurisdiction of the Arusha-based court to include international crimes. But none of the five signatories has ratified the protocol in their respective parliaments. The protocol requires the ratification of 15 countries to take effect.
Kenya and South Africa have been spearheading the campaign to withdraw from the ICC on the grounds that it targets African leaders, but Botswana, Senegal and Cote d’Ivoire have remained steadfast in their support for the court.
The Kenyan parliament has passed a motion to withdraw from the Rome Statute while South Africa’s African National Congress forwarded a motion for withdrawal following international condemnation for failing to arrest President al-Bashir during the Johannesburg AU summit last year.
Out of the 123 members of the Rome Statute, African states make up the majority with 34 signatories. But despite efforts by African states to withdraw en masse, Article 127 of the Rome Statute provides that state parties must pull out one by one.
According to the head of ICC Public Affairs Unit, Fadi el-Abdallah, the support of the international community is necessary, in Africa and beyond, for the ICC to fulfil its independent and impartial mandate.
“The ICC is an important international judicial mechanism established — with the overwhelming support of African states — to fight impunity for atrocity crimes, and by so doing, strengthen the rule of law, break the cycles of violence and contribute to peace and stability,” said Mr el-Abdallah.
Elise Keppler, associate director of the International Justice Programme at Human Rights Watch (HRW), said any action that even inches the AU toward backing withdrawal by an African ICC member is a move in the wrong direction, and inconsistent with justice for victims of international crimes.
“But the decision at the AU summit was not a call for mass withdrawal, nor is it the first time withdrawal has been raised but not materialised,” she said.
Ms Keppler said that not only is the ICC investigating the most brutal crimes — war crimes, crimes against humanity, and genocide — but for the majority of investigations, African governments — Mali, Cote d’Ivoire, Central African Republic, Uganda, and the Democratic Republic of Congo — asked the ICC to get involved.
The court has also just begun its first investigation outside Africa, in the Republic of Georgia.
Withdrawal from the ICC starts with a state party writing a notification of the intention to withdraw to the UN Secretary-General. The state party then has to wait for a year before the withdrawal comes into force.
In the meantime, the state party that has applied to withdraw is still obliged to co-operate with the court in ongoing investigations, as well as to continue its financial subscription to the court.