African leaders have passed a non-binding resolution aimed at a mass exit of member states from the International Criminal Court (ICC).
The African Union (AU) took the decision following a divisive debate at its annual heads of state summit in Addis Ababa. Part of the resolution also said the AU would hold talks with the United Nations Security Council to push for the ICC to be reformed.
The “strategy of collective withdrawal” from the ICC is not without reservations, an AU official told newsmen yesterday after this week’s AU summit.
Details of the reservations remained sketchy as press time as the official did not offer further details on the exit strategy.
Analysts say the move highlights broad antipathy towards the court among Africans who feel the ICC unfairly targets them.
“The leaders of AU member states endorsed the strategy of collective withdrawal, with reservations,” the AU official told newsmen.
Feelers from the just concluded summit had it that some African leaders proposed a coordinated withdrawal if the global court fails to reform.
Three African countries – South Africa, Burundi and The Gambia – had opted to quit the court in 2016, citing ‘victimisation’ of African leaders by the court.
A fact check revealed that part of the demand being proposed by the regional leaders included a call for “regionalisation” of international law, a reference to proposals for an African war crimes court.
The recent hostility by African leaders towards the court has cast gloom on its future as almost a third of the ICC’s 124 members are African, and analysts have said that a withdrawal by a large number of them would cripple a court that has remained heavily skewed against African leaders, according to international legal experts.
The ICC, which is 15 years old this year, has only charged Africans, including the presidents of Kenya and Sudan, although it has procedures open at earlier stages dealing with crimes in Eastern Europe, the Middle East and South America.
The ICC is an intergovernmental organisation and international tribunal with headquarters in The Hague in the Netherlands. It has jurisdiction to prosecute individuals for the crimes of genocide, crimes against humanity and war crimes.
The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction under certain conditions such as when national courts are unwilling , or unable, to prosecute criminals, or when the United Nations Security Council or individual states refer investigations to the Court.
The ICC began functioning on July 1, 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC’s foundational and governing document.
States become bounded by the Rome Statute by ratifying it, which by implication make them member states of the ICC. Currently, there are 124 states which are party to the Rome Statute and therefore members of the ICC.
Thus far, 39 individuals (all Africans) have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta and his deputy, William Routo, and former Ivorian president, Laurent Gbagbo.
In October 2016, after repeated claims that the court was biased against African states, Burundi, South Africa and The Gambia announced their withdrawals from the court.
Experts fear that the current development at the court might have a bushfire effect on the rest of the countries.
Opinions are, however, sharply divided on the merit of an exit from the membership of the court.
According to a legal practitioner, Godwin Ugboju, African leaders are justified in their exit from the court, saying “it is clear from all its activities that the court is selective in its approach.”
He wondered at a situation whereby, of all those prosecuted so far, Africa constituted nearly 100 per cent of the number.
“If a warrant of arrest could be issued against Omar al Bashir because of his cruelty against his own people of Dafur, what about leaders like Vladmir Putin who invaded a sovereign nation, Ukraine?
“Leaders of some countries, especially the industrialised nations, have refused to ratify the Rome Statute, meaning that they are not bound by the court. This means the court is purely set up for African countries alone.
“Look at South Africa, the ICC has been harassing them because it refused to arrest al Bashir. For God’s sake, a leader cannot come into your country under the umbrella of the African Union Commission and he is arrested. That would be a bad omen for the continental body,” Ugboju said.
He, however, cautioned that instead of an outright exit, African leaders should insist on a reform of the court.
“Given our history as a continent prone to dictatorship and human rights abuses, having a court like the ICC is necessary to serve as a deterrent,” he said, adding that crimes like those of the former president of Liberia, Charles Taylor cannot go unpunished.
“He not only caused crisis in his country, Liberia; he engineered heinous crimes in neighbouring Sierra Leone in pursuit of ‘blood diamonds.’
“If we disengaged completely from the ICC, Africa might not have the capacity to check brutal leaders,” he contended.
The critics of the court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicised prosecutions or other abuses.”
It is not only African leaders that fault the court’s structure. The respected American diplomat, Henry Kissinger, also criticised the court, when he said the checks and balances on the structure of the court were so weak that the prosecutor “has virtually unlimited discretion in practice.”
The court has also been accused of being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states.
This sentiment has been expressed particularly by African leaders due to an alleged disproportionate focus of the court on Africa, while it claims to have a global mandate. Until January 2016, all nine situations which the ICC had been investigating were in African countries.