If these African states withdraw because they oppose the way the ICC works and because of what they perceive it to stand for, namely an extension of Western domination they are very welcome to do so, although one could legitimately ask did they so eagerly chose to join it almost two decades ago, Indeed, the other ICC parties must insist that they withdraw at the earliest opportunity and not postpone it. After all, nobody wants to have dissatisfied members in an international institution, especially one which deals with prosecuting and trying individuals alleged to have committed all kinds of heinous crimes. What perhaps these states did not understand what was expected of them when they ratified the Rome Statute. When the ICC demands, for example, that they execute arrest warrants, they do not have a discretion whether to execute them or not. They are under a clear obligation to do so and it is then up to the arrested persons (whether their own nationals or not) to challenge the validity of the warrants. The Rome Statute does include an array of checks and so far the ICC seems to have employed them.

Thus, the question ought to be asked whether these African parties want to leave not because they are unhappy with the ICC but because they have realized that there are not able to carry out their responsibilities and commitments which flow from partaking in a multilateral criminal court. The fallacy that somehow states may participate in international institutions combatting impunity and striving to afford justice to victims, enjoy the benefits of membership, have the moral upper ground exactly because they participate and castigate those states which do not but at the same time have a carte blanche whether to comply with their duties or not cannot be sustained. This is unacceptable behaviour. The Assembly of States Parties has for very long tolerated those ICC parties (not only belonging to the African group) which have disobeyed the binding provisions of the Rome Statute. The decisions it adopts reminding parties of their obligation to cooperate with the ICC are clearly inadequate given the rebellion (if this word could be used) of certain African parties. The same is true for the UN Security Council as regards the situations it has referred to the ICC, namely Darfur and Libya. If one reads the regular reports that the ICC Prosecutor submits to the UNSC it becomes obvious that she is mesmerized by its total inaction.

But the purported withdrawals might not only have to do with the antipathy between the African Union (AU) and the ICC and the former’s direct or indirect attempts to rally those of its Member States, which are also ICC parties, against the ICC. It is instructive to recall that, despite the myriad problems and scourges affecting Africa, the AU Assembly has held only few extraordinary summit sessions to discuss them and to find solutions but it has dedicated a whole summit to deliberate Africa’s stance towards the ICC! Which might the other reasons for withdrawal be? The example of Namibian is telling. Given the aforementioned behaviour of its President, it came as no surprise that in November 2015 the government approved a recommendation by the country’s ruling party to withdraw from the ICC. However, when the International Relations and Cooperation Minister explained the reasons for the purported withdrawal the emphasis was no longer on its antipathy with the ICC. On the contrary, he suggested that Namibia no longer needed its services: it joined after Independence (Namibia signed the Rome Statute in October 1998 and became one of the original ICC parties when it commenced operating in 2002) because its domestic judicial institutions were weak at the time but this was no longer the case. In effect he was saying that Namibian courts are able and willing to prosecute war crimes, crimes against humanity, etc. and, therefore, the ICC is superfluous.

This attitude is in line with the role that the ICC plays, which, according to Article 1 of the Rome Statute, is to be complementary to national criminal jurisdictions. But if for the sake of argument Namibia withdraws (this argument also applies to other African ICC parties) and at some future point its domestic criminal jurisdiction proves unable to handle complex cases, how will the victims of crimes find justice and, more generally, how will impunity, a scourge particular to Africa, be combated? The AU still does not have a court of justice because, even though the Protocol establishing the African Court of Justice (the judicial organ envisaged in Articles 5 and 18 of the AU Constitutive Act) entered into force in February 2009, Member States have chosen to ignore it and have never proceeded with its operationalisation. On the contrary, they embarked on a fruitless attempt to merge it with the African Court of Human and Peoples’ Rights and then they have shunned the so-called African Court of Justice and Human Rights. And then, if this were not enough, in the summer of 2014 they adopted the Malabo Protocol to set up a further Section on International Criminal Law to the merged court in an attempt to show that they are capable of having their own international criminal justice mechanism making, by necessary implication, the ICC redundant. According to the table of ratifications of the Malabo Protocol maintained in the AU website, only nine states have signed it and none has ratified it.

This is a fine mess. But also a dangerous mess because those accused not only have avoided prosecution but also have been allowed to portray themselves as African heroes almost of the same stature with those who fought the anti-colonialism and anti-apartheid struggles. Conveniently the AU has not addressed the plight of the families of the hundreds of thousands who have perished at the whim of a handful of African leaders and their entourage. On the whole, these people do not have access to the African Court of Human and Peoples’ Rights, which, it must be noted, is not a criminal justice court. It might be the case that this Court could be given the opportunity to deal with war crimes, crimes against humanity, etc. but this is not its primary mandate. It does not have a Prosecutor who could initiate investigations either on his/her own initiative or when a situation has been referred by a contracting party to him/her. And of course the defendants before this Court are not individuals but only contracting states.

In conclusion, by now the project of international criminal justice has been most firmly embedded in the global community of nations. The withdrawals of a small number of African ICC parties (provided of course that they will actually take place) cannot and should not be allowed to derail it. African ICC parties can of course withdraw if they no longer have any use of its services or if they truly believe that it is an irrelevant institution. But as long as they fail to fight impunity effectively and ensure that the rights of the victims of atrocious crimes are protected, the ICC, despite its shortcomings, will remain the most appropriate institution. Let African states show to the world that they are able to sustain an international criminal justice system that is better than the ICC.