I. Chronology of the AU’s Relation to the ICC

A. Early Developments

The Rome Statute was adopted in 1998, and Senegal was the first country worldwide to ratify it in 1999.13 Other African nations quickly followed. Uganda, Kenya, South Africa, and Nigeria were among the early supporters who helped bring the Rome Statute into effect in 2002.14 By the time the ICC began operating, Africa had become its largest regional participant, representing a significant number of the ICC’s member states. On December 16, 2003, Uganda requested an ICC investigation into a situation in northern Uganda which the Prosecutor opened in July 2004.15 The government had been waging a fifteen-year counterinsurgency against the LRA who abducted over twenty-five thousand children.16

Reasons for joining an international organization like the ICC in a situation like Uganda’s are not as clear cut as they might seem at first glance. Joining the ICC poses the risk of limiting options of violently combatting the opposition since the governing individuals themselves could face trial.17 Yet, states with a low rule of law and recent history of violence are just as likely to commit to such an international institution as democracies with a high rule of law, no history of internal political violence, and no risk of prosecution.18 A possible explanation is that states with weaker institutions need to make a stronger commitment to seem credible in their fight against violence which require the help of a stronger third party.19 This is supported by the fact that non-democracies with a recent history of violence are three times as likely to join as non-democracies without a recent history of violence.20 For the former, the cost of losing parts of its sovereignty is worth the gain in the perceived interest for conflict resolution.21 This helps understand why so many early adopters were African countries.

The following early investigations all centered around Africa and were conducted in the Democratic Republic of Congo (DRC), Central African Republic, and Sudan.

B. The Al-Bashir Indictment as a Catalyst for Resistance

The first major cracks in the relationship between the ICC and the AU began to show after the ICC issued an arrest warrant for President Omar Al-Bashir in 2009 for genocide, crimes against humanity and war crimes during the civil war in Darfur.22 The AU in turn expressed its deep concerns for the ongoing peace efforts and repeatedly urged the United Nations Security Council (S.C.) to make use of Article 16 of the Rome Statute to defer the case.23 Article 16 allows the S.C. to defer ICC cases for a year, with the option to renew.24 Despite these ongoing requests, the S.C. did not grant a deferral.

In its July 2009 decision, the AU asked the African States Parties to the Rome Statute (ASPRS) to consider several issues related to the power of the S.C. like Article 16 of the Rome Statute.25 In the same decision, the AU also declared that since the S.C. will not meet its requests of a deferral, the AU will not apprehend and surrender Omar Al-Bashir should he visit a member state.26

Such clear reactionary policies are a sign of backlash in a quid pro quo stance. It is meant to apply political pressure on the ICC which lacks the means to apprehend individuals itself and is therefore entirely reliant on the enforcement of its arrest warrants through its member states. If a considerable percentage of member states in an especially critical region like Africa decide to stop cooperating, it would essentially halt all proceedings in its tracks. Threats of this magnitude are therefore very capable of inflicting harm on the functionality and legitimacy of the ICC as a whole.

This low point in the relation between the AU and the ICC is followed by the AU’s decision in February 2010 soundly rejecting the ICC proposal to establish a liaison office in Addis Ababa, Ethiopia, demonstrating the ever-growing rift between parties.27

Not all states agreed with the AU’s decision not to apprehend Al-Bashir. Botswana’s former Foreign Minister Phandu Skelemani reaffirmed that Botswana did not concur with the decree.28 Skelemani stressed that as a member to the ICC Botswana has treaty obligations which it plans to fulfill by cooperating, arresting, and transferring Al-Bashir should he enter Botswana.29

Al-Bashir went on to visit multiple African countries over the next years and was not apprehended during his stay in Kenya, Djibouti, South Africa, Uganda, or Malawi. While Chad noted reservations on the decision on not apprehending Al-Bashir due to a conflict over Darfur with Sudan, Al-Bashir was still not arrested during his visit in July of 2010 or during any of the other five following visits.30 Similarly, Kenya disregarded international pressure and criticism from the ICC and the international community and did not apprehend Al-Bashir in August of 2010 when he joined Kenya for its adoption of the new constitution.31

In another decision in February of 2010, the AU endorsed recommendations from the ASPRS, which included amending Article 16 to give the United Nations General Assembly (G.A.) the power to defer cases for a year if the S.C. failed to act within a certain timeframe and which was subsequently proposed by South Africa to the Assembly of State Parties (ASP).32 The proposal was not adopted by the ASP, leaving AU once again disappointed and not heard.33

Following the ongoing refusal to defer cases involving sitting heads of states and the lack of engagement, the AU grew increasingly frustrated with the S.C..34 In response, the AU Assembly called on the African Group in New York and the African Member States Bureau of the ASP to push for considerable and consequential actions and advocate in unison before the ICC for it to finally take the AU’s proposals into consideration.35 The AU also voices criticism against the veto power by the five permanent members of the S.C., three of which are not party to the Rome Statute, yet are still able to exercise their veto power on whether to refer or defer cases before the ICC.36 The AU proposed to distribute the discretionary power of the S.C. to defer cases to an independent oversight body.37 This dichotomy of S.C. veto powers agency over ICC proceedings while themselves not standing the risk of criminal investigations only fueled the resentment built up by the prosecution of Al-Bashir and the ICC’s and S.C.’s failure to act.

From the AU’s point of view, these proposals seem adequate. The S.C. is one of the less democratic institutions of the U.N. and giving its power to an independent oversight body or the more democratic G.A. would have relieved some of the tension. The AU’s goal was to feel heard and to obtain more agency.

C. Escalating Tensions and Pushbacks

In a similar way, Kenya requested the S.C. to defer the ICC proceedings against its President Uhuru Kenyatta and Deputy William Ruto for one year in October of 2013.38 The AU backed Kenya’s request in a letter sent to the S.C. on November 1, 2013.39 Rwanda proposed a resolution to defer the cases, but in November of 2013, the resolution failed to secure the necessary nine votes in the S.C., receiving seven votes in favor from states like China and Russia, but eight abstentions.40 Thus, Kenyatta became the first sitting head of a state to go on trial at the ICC.41 As a response to the S.C. rejecting the request for deferral and feeling unheard yet again, Kenya would later lead the calls for a withdrawal during the Twenty-sixth Ordinary Session of the AU in 2015.42

While the AU as a whole has voiced its criticism in regard to the ICC, the same cannot be said about each individual member state. Viewing the AU as an institution that is able to represent all of its parties equally does not encapsulate the complexity of the situation. As with many other international organizations, the AU is not able to generalize each state’s interest and distill a satisfactory decision to all parties involved. Such is the case with Botswana who, as in the Al-Bashir decision, entered its reservation to the May 2013 decision.43 In it, the AU communicated its regret that the S.C. did not defer the case against the former President of Sudan Omar Al-Bashir, former President of Kenya Uhuru Kenyatta, and former Minister William Ruto.44 Furthermore, the decision reaffirmed that Chad acted in accordance with AU policy when it welcomed Omar Al-Bashir instead of apprehending him.45

Other African Nations also acted in support of the ICC, namely Côte d’Ivoire through arresting and surrendering Laurent Gbagbo and Charles Blé Goudé to the ICC as well as Niger handing over Ahmad Al Faqi Al Mahdi.46

Botswana’s stance on the matter was addressed by John Moreti, former Ambassador for Botswana, in an interview for the Kenya Television Network.47 Botswana does not continue to publicly state its support for the ICC to express its disagreement with Kenya’s position, but instead it believes that the AU is perpetuating destructive policies which antagonize the Court and hinders Africa in improving its relations with the international community.48 Another Botswanan spokesperson, Jeff Ramsey, explained that the Botswanan President does not agree that the ICC is just targeting Africa.49 Additionally, Ramsey emphasizes Botswana’s principles to stand up for human rights and democracy on the African continent.50

The argument that the ICC is not deliberately targeting African countries is made by the first Prosecutor of the ICC Luis Moreno Ocampo. In a discussion hosted by Al Jazeera and opposite Mahmood Mamdani, professor at Uganda’s Makerere University, Ocampo argued that the cases in Congo, DRC, Mali, Uganda, and Cote d’Ivoire were all self-referred by the states themselves.51 He goes on to elaborate that the cases of non-member states like Libya and Sudan were referred to the ICC by the S.C..52 At the time of the referral, five African Nations on the S.C. voted in favor of referring Libya and Sudan, namely South Africa, Nigeria, Benin, Gabon, and Tanzania.53 To criticize the Prosecutor of complying with the requests by African member states themselves or S.C. decisions supported by African nations would be, in Ocampo’s words, hypocritical.54 Ocampo claims that the Africa bias criticism is actually an invention by President Al-Bashir of Sudan to cover up his genocide.55

While Ocampo’s argument deserves approval, it must be kept in mind that Mamdani’s arguments are not invalidated. The Prosecutor is tasked with opening investigations after self-referral or S.C. referral.56 Criticism based on the Prosecutor fulfilling this obligation, which all member states agreed to by signing onto the Rome Statute, is questionable. This may not apply to the situation in Kenya, since this investigation was opened proprio motu by the Office of the Prosecutor (OTP), but it does hold weight in Uganda’s case.57 The same argument can be applied to the case of Sudan. Even though this case was not self-referred—Sudan is not even a member state of the ICC—it was referred to the OTP by the S.C. with the backing of African states in the S.C. at the time.58 Again, the criticism directed at the OTP is questionable as this investigation was not initiated under the Prosecutor’s own discretion. Even when extending the criticism towards the S.C. it again has to be noted that the referral was made with African support.

On the other hand, it must be recognized that Mamdani makes a valid point when voicing the concern of foreign interference in state sovereignty.59 It is irrefutable that the targeting of sitting heads of states as individuals unavoidably also aims at their professional role within that state. This restricts their agency, in case of an arrest warrant their freedom to travel, and shapes public opinion on the state and the accused through media reporting. Ocampo denying any influence on heads of state as political figures is just as debatable.

D. First Steps of Independence through the Malabo Protocol

During the growing dissatisfaction of AU states with the ICC, calls for a more powerful African Court of Justice became more prevalent. This endeavor is by no means new.60 As early as 1981, African Countries were making efforts in drafting and adopting the African Charter on Human and Peoples’ Rights, which went into force in 1986.61 The question of establishing an African Criminal Court came up again in 2004 as the AU was debating the election of the judges for the newly formed African Court of Justice.62 No election of judges took place since too few candidates where nominated but instead the AU decided to merge the African Court of Justice with another newly formed institution, the African Court of Human Rights.63 This process concluded in July 2008 with the AU adopting the Protocol on the Statute of the African Court of Justice and Human Rights, but as not enough states have ratified the Protocol, it has not entered into force.64

The AU Commission, at request of the AU Assembly, asked the Pan African Lawyers Union (PALU) in June 2010 to advise on and lay the groundwork for a legal instrument which would amend the Protocol on the African Court of Justice and Human Rights (ACJHR).65 This lengthy process sped up considerably after the S.C. rejected Kenya’s AU backed request to defer the case against President Kenyatta and Deputy Ruto for a year which caused the AU Assembly to ask the AU Commission to accelerate the expansion of the ACJHR.66 Quickly the idea solidified that the upcoming amendment would need to grant immunity not only to sitting heads of state but also to an undefined group of senior officials.67 During its twenty-third ordinary session and amidst international criticism, the AU Assembly discussed what became the Malabo Protocol, which will come into force thirty days after fifteen AU member states have ratified it.68

In June 2014, the AU Assembly of Heads of State and Government agreed in Malabo, Equatorial Guinea on the now finalized Malabo Protocol and called for its member states to sign and rapidly ratify it.69 A strong advocate for the Malabo Protocol was again Kenya, who spearheaded the support in front of the AU.70 A clear motivation for Kenya, as stated by then President Uhuru Kenyatta, was the still pending charges against Deputy William Ruto and Joshua Arap Sang.71 Kenyatta called for the AU to keep putting pressure on the ICC as long as they have not been acquitted.72

The Malabo Protocol is aimed at extending the jurisdiction of the ACJHR by adding a third section tasked with the adjudication of international criminal law cases to the two the already existing sections of general affairs and human rights.73 It is intended for the ACJHR to gain jurisdiction over fourteen crimes including genocide, crimes against humanity, war crimes, the crime of aggression, as well as the crime of unconstitutional change of government, and terrorism, among other things, with the option to add more crimes at a later point in time.74 The ACJHR would in essence act like a geographically limited ICC with a vastly extended list of crimes.

As of 2024, fifteen AU member states have signed the Malabo Protocol, yet none have ratified it.75 The latest state to sign was Togo in 2019.76 Given that only five states signing after 2016 and no states signed in the last five years, it is a fair assessment to make that the movement has slowed down significantly if not halted completely. It is reasonable to assume that this may be related to the investigation against Kenyatta in 2015, the case against Ruto and Sang being closed in 2016, and the perceived pressure of the ICC on Africa lessened in the following years.77

The Malabo Protocol has faced international criticism on many accounts. From its inception, the envisioned structure, the definitions of the crimes in its jurisdiction, and its relationship with the ICC have proven to be contentious.

1. Definitions

While the three core crimes of international criminal law are in conformity with the internationally agreed definitions, the newly added crimes pose difficulties to define. Since the first drafts of PALU, the crime of unconstitutional change of government was a contested subject of discussion as states were unsure if popular uprisings could be prosecuted and thus instrumentalized to combat unwanted protests.78

Likewise, the definition for terrorism has been criticized as overly broad.79 There is no consensus regarding an international definition of terrorism and distinct uses of this term throughout different regions are often at odds with the principle of legality due to their vagueness.80 Amnesty International expresses concern that, like with other legal definitions of terrorism, it may be used to oppress minorities, silence political opposition, or weaken religious groups.81 The language “general insurrection in a State” is especially problematic as it leaves a great deal of interpretative discretion to the court, and may be used to restrict protest or discredit groups with differing opinions.

The same goes for the already mentioned and highly controversial immunity clause in Article 46 A of the Malabo Protocol. The term senior officials is not only broad but also open ended. Arguments could be made for many influential politicians, other government officials or even economic figures to be considered as such senior officials. As Amnesty International put it:

Experience has shown that on the African continent, as elsewhere, it is those in positions of power who typically abuse their authority and state resources to commit international crimes. The immunity clause essentially promotes and strengthens the culture of impunity that is already entrenched in most African countries. It rolls back the gains that have already been realized in the fight against impunity in some African countries.82

2. Relation with ICC

The ACJHR and the ICC will both be tasked with adjudicating the same crimes in countries that have ratified the Rome Statute and the Malabo Protocol with the only difference being the immunity to sitting heads of states or senior officials presented by the Malabo Protocol. As the establishment for the ACJHR was greatly fueled by contemporary issues between the ICC and the AU, the Malabo Protocol mentions neither the ICC itself nor the Rome Statute. The Malabo Protocol envisions a cooperative environment between national courts and its jurisdiction but fails entirely to explain any relation with the ICC regarding cooperation or surrender of suspects.83 Even though the Malabo Protocol does not concern itself with the ICC or the Rome Statute, it does not override or change any obligation of their member states.84 Still member states to both courts would find themselves in a difficult position should the ICC and the ACJHR decide to indict the same person. The apprehending state would need to break its obligations regarding one court to fulfill its duty towards the other.

3. Structure and Finance

The ACJHR is supposed to serve all its three sections with sixteen appointed judges, five serving in General Affairs, five in Human Rights and six in the International Criminal Law section.85 If the ACJHR were to adopt such a wide jurisdiction of fourteen crimes in addition to two other sections, it is doubtful that sixteen judges will suffice, especially when compared to the enormous personnel and financial resources of the ICC in relation to its number of trials per year.86 The ICC employs eighteen judges for four crimes while the ACJHR plans to adjudicate more than triple the number of crimes with less judges.87

The Malabo Protocol also intends to reduce the number of already appointed judges at the Human Rights section from eleven to five and may thus prove to have the adverse effect of weakening Africa’s stance on Human Rights protection.88 Even by its own estimations provided by PALU, the ACJHR must employ 211 staff members just to handle the planned expansion.89

This puts pressure on the financial prerequisites which are expected to be demanding.90 The AU funds less then twenty-five percent of its Human Rights treaty bodies itself and is reliant on donors like the European Union (EU) that have already declined funding the expansion of an International Criminal Law Section due to the immunity clause in Art. 46 A of the Malabo Protocol.91 It is evident that the EU among other donors share the concerns regarding the immunity clause since it may lead to impunity.

Lastly, the Malabo Protocol would restrict non-African NGO’s access to ACJHR.92 Only African individuals or NGOs will be able to gain firsthand insights into the ACJHR.93 This only furthers the seclusion of African justice from the international community.

E. Continued Disobedience in the Al-Bashir Case, Calls for Withdrawal and Diverging Opinions

Returning to the still unresolved issue of the apprehension of Al-Bashir, South Africa chose not to execute the ICC’s arrest warrant during Al-Bashir’s visit for the AU Summit in June 2015 since South Africa’s President Jacob Zuma supported the AU’s decision since 2009.94 Zuma’s stance was the same as what he believed to be the African stance and he would not act against it, instead putting his trust in the Sudanese peace negotiations.95 That same month, South Africa’s ruling party, the African National Congress, issued a statement proclaiming that it does no longer believe the ICC is serving its original purpose of being a last resort court to prosecute crimes against humanity.96

Uganda later went on to ignore arrest warrants and not to apprehend Al-Bashir as well. Notably, Uganda’s position on the matter has shifted over time to suit its own political ambitions. During 2009–2010, Uganda was reliant on the ICC and therefore other states to arrest the Commander-in-Chief of the LRA Joseph Kony and could thus not disobey ICC arrest warrants itself.97 To ensure its solidarity with the ICC, Uganda revoked Al-Bashir’s invitation to the International Global Smart Partnership dialogue in 2010.98 Still, Al-Bashir attended President Museveni’s inauguration on May 12, 2016 in Uganda, during which Museveni called the ICC useless, sparking outrage among EU and Canadian representatives, who left the inauguration ceremony due to said comments.99

In March of 2016, The Supreme Court of Appeal of South Africa found that South Africa violated its duty to apprehend Al-Bashir during the AU summit in Johannesburg in June of 2015.100 They ruled that South Africa was forced to arrest and surrender Al-Bashir due to its treaty obligations with the ICC and its constitution.101 In a similar fashion, Kenya’s Court of Appeal affirmed Kenya’s duty to arrest Al-Bashir.102

Burundi’s Parliament voted to withdraw from the Rome Statute on October 12, 2016, and, after the president backed and signed the decree, the U.N. Secretary General was informed on October 27, 2016.103 Burundi so far remains the only country out of the AU to have successfully withdrawn from the ICC. Others have tried.

South Africa notably submitted a notice to the U.N. Secretary General on October 19, 2016, with their intention to withdraw from the Rome Statute as well, arguing that its obligation to the peaceful resolution of conflict is at odds with the interpretation of the ICC.104 Later, South Africa was forced to revoke its notice of withdrawal due to a High Court decision stating that a withdrawal in such a proceeding is at odds with the South African constitution.105

Other countries like Gambia, Namibia, and Uganda have announced their intentions to withdraw and the Kenyan Parliament has discussed a motion to withdraw twice in 2013 and 2016.106 Gambia has later reversed its decision after a change in administration.107

The AU finally reached a resolution in 2017 advising its member states to reconsider their support for the ICC.108 This represents the lowest point in their shared history. It is unprecedented to see the AU outright calling on its member states to reconsider their position in the ICC and thus insinuating withdrawals.

This decision was yet again not backed by all member states. Nigeria’s foreign minister Geoffrey Onyeama said to AllAfrica that Nigeria is opposed and was not the only country raising its voice against a call for collective withdrawal.109 Côte d’Ivoire’s President called out for unity and declared countries leaving the ICC were deserting the fight for the victims.110 Both Nigeria and Côte d’Ivoire stated that joining the Rome Statute was a decision on the state level and therefore leaving the ICC should be treated in the same vein. Taking away agency from its member states cannot solve the lack of agency in another international organization. Additionally, Senegal, Burkina Faso, Mali, Malawi, Zambia, Tanzania, Ghana, Democratic Republic of Congo, Lesotho, Sierra Leone, and Botswana all voiced their continuing support for the ICC.111 More than twenty international organizations and NGOs have also criticized the decision and called the recommendation a devastating blow and even a slap in the face for victims of international crimes across Africa.112

II. Quantitative Analysis

Trying to pinpoint a state’s stance on the ICC can be difficult due to multiple reasons. Firstly, it is unclear at what point a state crossed over from criticism to opposition. Is voting for the Malabo Protocol enough? Is signing the Protocol enough? What about not arresting indicted individuals or voting for a S.C. referral as an African member state? For the purposes of this comment, the following shall apply: While states that have pushed for or signed onto the Malabo Protocol do not necessarily have a critical view of the ICC, the Malabo Protocol itself was born during times of heightened tensions between the AU and the ICC and backed by Kenya, who was at odds with the ICC due to Kenyatta’s and Ruto’s indictment. Placing jurisdiction in the hands of a different court without addressing the necessary means of cooperation is a threat to the existence of the ICC. Not only would it no longer be the primary adjudicator of international criminal law in the region, but it must also worry even more about the support of member states in apprehending and surrendering suspects. Due to its time of origin, its advocates and its contents, the Malabo Protocol must be seen as a way to exert political pressure on the ICC. Signing onto the Malabo Protocol must hence be seen as contributing to said political pressure and will be valued as taking a stance against the ICC in some form. States who have spoken out for the Malabo Protocol during its discussion who are not member states of the ICC will also be weighed as taking a stance against the ICC.

Not arresting indicted individuals is a breach of treaty obligations as confirmed by multiple state courts.113 It is therefore also recognized as taking a stance against the ICC.

Voting in favor of referring a case to the ICC as a S.C. member will on the other hand not be weighed. The vote itself could be seen putting trust into the institution and therefore taking a stance in favor of the ICC. Yet other political motivations might just as well have been the driving force and therefore a definitive answer is difficult to reach.

The second difficulty posed is changing behaviors. A state might change its view on a single matter or act one way in one matter and a very differently in another. It is a very subjective evaluation what action carries how much weight in what direction. For that reason, states with ambivalent actions shall be considered as such.

Table 1: ICC member states and their stance.

Table 1. ICC Member States and Their Stance

State	Stance	Reason	Malabo Protocol Status
Benin	Against	In favor of Malabo Protocol during AU Assembly	Signed on 01/28/2015
Botswana	In Favor	Spoke out in favor of ICC; Entered reservations to AU Decisions
Burkina Faso	In Favor	Spoke out in favor of ICC
Cabo Verde	Unclear
Central African Republic	Unclear
Chad	Ambivalent	Entered reservations to AU Decision on Al-Bashir; not apprehended Al-Bashir	Signed on 02/24/2016
Comoros	Against		Signed on 01/29/2018
Congo	Against		Signed on 06/12/2015
Côte d'Ivoire	In Favor	Spoke out in favor of ICC; surrendered Gbagbo and Goudé
Democratic Republic of Congo	Ambivalent	In favor of Malabo Protocol during AU Assembly; Spoke out in favor of ICC
Djibouti	Against	Not apprehended Al-Bashir
Gabon	In Favor	Referred case to ICC as UNSC member; late self-referral (2016)
Gambia	Ambivalent	Intended to withdraw, but revoked under new administration
Ghana	Against		Signed on 01/28/2016
Guinea	Against		Signed on 12/13/2018
Kenya	Against	Driving force of Malabo Protocol during AU Assembly; not apprehended Al-Bashir; Parliament discussed withdrawal twice	Signed on 01/27/2015
Lesotho	In Favor	Spoke out in favor of ICC
Liberia	Unclear
Madagascar	Unclear
Malawi	Ambivalent	Spoke out in favor of ICC; did not apprehend Al-Bashir
Mali	Unclear	Referred case to ICC as UNSC member
Mauritius	Unclear
Namibia	Against	Intended to withdraw
Niger	In Favor	Surrendered Al Mahdi
Nigeria	In Favor	Referred case to ICC as UNSC member; spoke out in favor of ICC
Senegal	In Favor	Spoke out in favor of ICC
Seychelles	Unclear
Sierra Leone	Ambivalent	Spoke out in favor of ICC	Signed on 01/29/2016
South Africa	Against	Intended to withdraw; did not apprehend Al-Bashir; Spoke out against ICC
Tunisia	Unclear
Uganda	Against	Intended to withdraw; in favor of Malabo Protocol during AU Assembly; Switch in Al-Bashir approach; did not apprehend Al-Bashir	Signed on 07/03/2017
United Republic of Tanzania	Ambivalent	In favor of Malabo Protocol during AU Assembly; referred case to ICC as UNSC member; Spoke out in favor of ICC
Zambia	In Favor	Spoke out in favor of ICC
Burundi	Left the ICC

Ten member states have expressed some form of disapproval towards the ICC, eleven counting Burundi as a former state, which is almost a third of all member states. Nine states have positioned themselves in favor of the ICC while six states act ambivalent, and eight states have not voiced their opinions on the matter in a way that could sway in either direction. Nine states have signed onto the Malabo Protocol and out of these states only Sierra Leone and Chad acted ambivalent. A slim relative majority is opposed to the ICC. Notable roles among the opposition are Kenya, South Africa, Uganda, and Burundi as they have played very active roles in advocating policies intended to pressure or harm the ICC. The AU could not be more divided with almost equal parts going to favorable, opposing, and unclear outlooks.

III. Implications for the ICC

The AU Commission addressed fundamental problems it saw with the universal jurisdiction as it was applied by the ICC. In its 2008 Report on the use of the principle of universal jurisdiction by non-African states, the Commission saw the sovereign equality of states threatened by the possibility of indictment of sitting heads of state.114 As a solution, the report suggest that the state under investigation must consent to its sitting head being ordered to appear in front of court as well as a clause to respect diplomatic confidentiality.115 The Commission argues that heads of state or other high ranking officials may not govern in full capacity especially during peace negotiations while on trial.116

Mamdani agrees. Targeting a head of state is never just the prosecution of an individual, Mamdani argues, but the function and role of that individual is attacked as well.117 He draws parallels to the President of the United States who must be impeached first before becoming subject to criminal investigations.118

However, when evaluating the weight of this argument, one must consider the fact that this kind of head of state immunity is not universally available in the local law of the individual states criticizing the lack of this immunity from the ICC. Countries like South Africa, Kenya, Uganda, Senegal, Mauritius, and Burkina Faso themselves do not recognize constitutional immunity of their head of state.119

It goes without saying that there is a notable difference between protection from local criminal proceedings and protection from potential foreign interference through international criminal proceedings. The lack of the former does not constitute reason or explanation for the lack of the latter. Yet it is still noteworthy that one of the main points of contention is not handled differently in the local laws of some very vocal adversaries of the ICC, especially when considering the differences in effects on the individual being prosecuted. It is doubtworthy to say the least that e.g. native South African criminal proceedings are that much less harmful to an official’s scope of action to warrant the lack of protection against the international counterpart. And, going even further than that, it is just as plausible that local proceedings may be instrumentalized in a non-judicial way to go after political opponents, particularly when the judicial system is not as consolidated or experienced as other states’ systems. While this does not invalidate the Commission’s and Mamdani’s point, it should still be taken into account when forming an opinion on the matter. It is therefore reasonable to say that while the AU pursued political goals with the call for immunity, strong factual arguments fuel international backlash. The ICC does not have to worry too deeply about these ideas. Like with the funding of the ACJHR, the international community has ways of acting against these operations and is willing to make use of them.

The Malabo Protocol as a whole is representative of the African dissatisfaction with the international community and its approach to universal jurisdiction. As emphasized in many discussions regarding the Malabo Protocol in the AU, it puts peace efforts over justice by granting immunity to its heads of state. Peace is achieved through political solutions which are dependent on the actors and the trust between them.120 Justice however is attained by indictment and trial which are impossible to pursue in case of immunity of the perpetrator.121

On the other hand, the Malabo Protocol also distances Africa further from other international actors and organizations by offering vague criminal offenses to potentially be abused and not establishing any way of cooperation with the ICC.

The Malabo Protocol must be seen in the larger context of the AU’s political rebellion which is often portrayed as a fight for accountability and independence from judicial colonialism. Its adoption came amidst the phase of greatest distance and sharpest criticism against the ICC by the AU. Actors with their own local political stakes like Uganda and Kenya advocated for the ACJHR and against the ICC. The fact that their respective foreign policies are based on local interests is observable in the reactive and changing behaviors throughout this crisis of trust. Uganda’s switch on their approach regarding Al-Bashir as well as Kenya becoming an active advocate right after Kenyatta was indicted and the S.C. decided not to defer its cases, only to fall silent after the cases were terminated prove that these at the very least played a role in motivating the countries. Since the Prosecutor started investigating other regions of the world and lessened the pressure on Africa, the calls for African judicial independence grew silent.

The second Prosecutor of the ICC from 2012 to 2021 was Fatou Bensouda from Gambia.122 One can only speculate if the lowered pressure on the African continent, investigations in different regions other than Africa, the second Prosecutor being African, or even the acquittal of Kenyatta, Ruto and Sang were results of the AU pressuring the ICC. It is safe to say though that member states advocating for judicial independence or stopping any cooperation in apprehending suspects were exerting political pressure on the ICC. This is evident in the process surrounding the ACJHR slowing down just as the tensions began to cool off. Many of these were political maneuvers aimed at expressing dissatisfaction with the ICC and the S.C..

While it is speculation to say whether these results were entirely based on the AU’s actions, it is observable that to some degree African countries were heard. Kenyatta, Ruto, and Sang no longer stand trial, and the OTP was led by an African Prosecutor who opened investigations into other regions and guided the focus away from just one continent.

When evaluating the effects of the different means used by the AU and its member states to enact resistance, the following should be observed: outcries and proposals towards the S.C. and the ICC were less than fruitful in the early days of the feud. They only worked to agitate the side that felt it was being treated unfairly. Stalling or stopping cooperation entirely is different as the effects can clearly be seen and felt. The ICC goes blind in these countries, it cannot rely on its foundation anymore. This can be seen as the first measures akin to civil disobedience. Lastly, turning its back on the ICC and calling for mass withdrawals has caused a reaction. To prove the commitment of the AU to its independence, the Malabo Protocol served as a reminder that new local institutions are intended to replace the ICC.

Losing control over the foundation of the ICC is harmful but losing the foundation all together is destructive.

IV. Conclusion

In conclusion, this comment went through the timeline of the AU’s relation with the ICC, its member states’ stance and how they evolved over time, and provided a quantitative analysis as well as a look into how this conflict impacted the ICC. It highlighted key actors and events throughout a period of over twenty years. International feedback to the measures taken were incorporated as were the given by state officials for their respective actions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   About the Court, ICC, available online (last visited Nov. 20, 2024). ↩

2. 2.

   The ICC at a Glance, ICC (Nov. 19, 2019), available online. ↩

3. 3.

   About the Court, supra note 1. ↩

4. 4.

   About the African Union, AU, available online (last visited Nov. 20, 2024). ↩

5. 5.

   Id.; African States, ASP, available online (last visited Nov. 20, 2024). ↩

6. 6.

   About the African Union, supra note 4. ↩

7. 7.

   Philomena Apiko & Faten Aggad-Clerx, The International Criminal Court, Africa and the African Union: What Way Forward?, ECDPM Discussion Paper 201 (Nov. 2016), available online. ↩

8. 8.

   See Situation in Uganda, ICC-02/04-1, Decision assigning the situation in Uganda to Pre-Trial Chamber II (ICC Presidency, Jul. 5, 2004), available online. ↩

9. 9.

   Uganda, ICC, available online (last visited Nov. 20, 2024). ↩

10. 10.

    Apiko & Aggad-Clerx, supra note 7, at 9. ↩

11. 11.

    Id.; Melissa Hendrickse, Editorial, A Chance for Africa to Counter the Pitfalls of International Criminal Justice?, Mail & Guardian, Apr. 15, 2024, available online, archived. ↩

12. 12.

    See Priya Pillai, The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability, 22 ASIL (Aug. 22, 2018), available online. ↩

13. 13.

    Senegal, ASP, available online (last visited Nov. 21, 2024); States Parties—Chronological List, ASP, available online (last visited Nov. 22, 2024). ↩

14. 14.

    Pillai, supra note 11; Apiko & Aggad-Clerx, supra note 7, at 1. ↩

15. 15.

    Uganda, supra note 9. ↩

16. 16.

    Id. ↩

17. 17.

    Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal Court, 64 Int’l Org., 225, 245–47 (Apr. 2010), available online. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    Id. at 240. ↩

21. 21.

    Id. ↩

22. 22.

    Al-Bashir Case, ICC, available online (last visited Nov. 23, 2024). ↩

23. 23.

    African Union, Assembly/AU/Dec.221(XII), Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of the Sudan (Feb. 3, 2009) [hereinafter Decision on Sudan], available online; Apiko & Aggad-Clerx, supra note 7, at 14. ↩

24. 24.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 16, available online. ↩

25. 25.

    African Union, Assembly/AU/Dec.245(XXIII) Rev. 1, Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (Jul. 3, 2009), available online. ↩

26. 26.

    Decision on Sudan, supra note 23, ¶ 10. ↩

27. 27.

    African Union, Assembly/AU/Dec.493(XXII), Decision on the Progress Report of the Commission on the Implementation of Decision (Feb. 2, 2010), available online. ↩

28. 28.

    AU Leaders Will Not Extradite Al Bashir, SA News, Jul. 6, 2009, available online. ↩

29. 29.

    Id. ↩

30. 30.

    Apiko & Aggad-Clerx, supra note 7, at 18. ↩

31. 31.

    Id.; Kenya Defends Failure to Arrest Sudan’s President Omar Al-Bashir, AP, Aug. 29, 2010, available online. ↩

32. 32.

    African Union, Assembly/AU/Dec.270(XIV), Decision on the Report of the Second Meeting of the States Parties to the Rome Statute on the International Criminal Court (Feb. 2, 2010), available online; Apiko & Aggad-Clerx, supra note 7, at 14. ↩

33. 33.

    Apiko & Aggad-Clerx, supra note 7, at 14. ↩

34. 34.

    Id. at 15. ↩

35. 35.

    Id. ↩

36. 36.

    Id. ↩

37. 37.

    Id. ↩

38. 38.

    AU Request for ICC Deferral of Kenyan Situation, S.C. Rep. (Nov. 13, 2013), available online. ↩

39. 39.

    Id. ↩

40. 40.

    U.N. Rejects Africa Bid to Halt Kenya Leaders’ ICC Trials, BBC News, Nov. 15, 2013, available online. ↩

41. 41.

    Kenyatta Case, ICC, available online (last visited Nov. 25, 2024). ↩

42. 42.

    Apiko & Aggad-Clerx, supra note 7, at 18. ↩

43. 43.

    African Union, Assembly/AU/Dec.482(XXI), Decision on the International Jurisdiction, Justice and the International Criminal Court (May 27, 2013), available online. ↩

44. 44.

    Id. ¶ 3. ↩

45. 45.

    Id. ↩

46. 46.

    See Gbagbo and Blé Goudé Case, ICC, available online (last visited Nov. 25, 2024); Al Mahdi Case, ICC, available online (last visited Nov. 25, 2024). ↩

47. 47.

    Botswana Explains Why It’s Backing ICC, KTN News Kenya on YouTube, at 0:55, May 29, 2013, video available online

    (interviewing John Moreti, Former Botswana Ambassador). ↩

48. 48.

    Id. ↩

49. 49.

    Peter Clottey, Botswana, African Union Disagree Over International Criminal Court Warrants, Voice of America, Jul. 11, 2011, available online. ↩

50. 50.

    Id. ↩

51. 51.

    Is the ICC Biased Against African Countries? Interview of Luis Moreno Ocampo and Mahmood Mamdani by Mehdi Hasan, Al Jazeera, Mar. 12, 2016 [hereinafter Al Jazeera Interview], video. ↩

52. 52.

    Id.; see Situation in Darfur, Sudan, ICC, available online (last visited Nov. 25, 2024); Situation in Libya, ICC, available online (last visited Nov. 25, 2024). ↩

53. 53.

    Al Jazeera Interview, supra note 51. ↩

54. 54.

    Id. ↩

55. 55.

    Id. ↩

56. 56.

    Rome Statute, supra note 24, at Art. 13. ↩

57. 57.

    Id. Art. 15; Kenyatta Case, supra note 41; Uganda, supra note 9. ↩

58. 58.

    Al Jazeera Interview, supra note 51. ↩

59. 59.

    Id. ↩

60. 60.

    Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court 12 (Jan. 2016) [hereinafter Expanded African Court], available online. ↩

61. 61.

    African Charter on Human and Peoples’ Rights (Jun. 27, 1981), available online. ↩

62. 62.

    Expanded African Court, supra note 60, at 8; see Protocol of the Court of Justice of the African Union (Jul. 11, 2003), available online. ↩

63. 63.

    Expanded African Court, supra note 60, at 8. ↩

64. 64.

    Protocol on the Statute of the African Court of Justice and Human Rights (Jul. 1, 2008), available online. ↩

65. 65.

    Expanded African Court, supra note 60, at 9. ↩

66. 66.

    African Union, Assembly/AU/Dec.493(XXII), Decision on the Progress Report of the Commission on the Implementation of the Decisions on the International Criminal Court ¶ 13 (Oct. 2013), available online. ↩

67. 67.

    Expanded African Court, supra note 60, at 11. ↩

68. 68.

    African Union, Assembly/AU/Dec.529(XXIII), Decision on the Draft Legal Instruments (Jun. 27, 2014), available online. ↩

69. 69.

    Id. ↩

70. 70.

    AU on ICC Court, Citizen TV Kenya, Jan. 31, 2015, available online. ↩

71. 71.

    Id. ↩

72. 72.

    Id. ↩

73. 73.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art. 3 (Jun. 27, 2014) [hereinafter Malabo Protocol], available online. ↩

74. 74.

    Id. Annex: Statute of the African Court of Justice and Human and Peoples’ Rights Art. 28A

    (noting that the other crimes are piracy, mercenaryism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and the illicit exploitation of natural resources). ↩

75. 75.

    List of Countries that have Signed, Ratified/Acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, AU (May 20, 2019), available online

    (noting the states that have signed on: Benin, Chad, Comoros, Congo, Equatorial Guinea, Ghana, Guinea-Bissau, Guinea, Kenya, Mozambique, Mauritania, Sierra Leone, Sao Tome & Principe, Togo, and Uganda with the last signature coming from Togo on April 2, 2019). ↩

76. 76.

    Id. ↩

77. 77.

    Kenyatta Case, supra note 41; Ruto and Sang Case, ICC, available online (last visited Nov. 29, 2024). ↩

78. 78.

    Amnesty International, Snapshots of Legal and Institutional Implications of the Malabo Protocol (May 2017) [hereinafter Snapshots], available online; Expanded African Court, supra note 60, at 16. ↩

79. 79.

    Snapshots, supra note 78, at 6. ↩

80. 80.

    Expanded African Court, supra note 60, at 17. ↩

81. 81.

    Id. ↩

82. 82.

    Expanded African Court, supra note 60, at 27. ↩

83. 83.

    Malabo Protocol, supra note 73, at Art. 46 H. ↩

84. 84.

    Expanded African Court, supra note 60, at 22. ↩

85. 85.

    Malabo Protocol, supra note 73. ↩

86. 86.

    Expanded African Court, supra note 60, at 22. ↩

87. 87.

    Judges of the Court, ICC, available online (last visited Nov. 29, 2024). ↩

88. 88.

    Expanded African Court, supra note 60, at 26; Snapshots, supra note 78, at 7. ↩

89. 89.

    Snapshots, supra note 78, at 9. ↩

90. 90.

    Id. ↩

91. 91.

    Id. ↩

92. 92.

    Malabo Protocol, supra note 73, at Art. 30. ↩

93. 93.

    Id. ↩

94. 94.

    AU Leaders Will Not Extradite Al Bashir, supra note 28. ↩

95. 95.

    Id. ↩

96. 96.

    Aggrey Mutambo, South Africa’s ANC Slams ICC Over Attempts to Arrest Sudanese President Bashir, Nation, Jun. 16, 2016, available online. ↩

97. 97.

    See Kony Case, ICC, available online (last visited Nov. 26, 2024). ↩

98. 98.

    Uganda Backtracks on Invite for Sudan’s Omar Al-Bashir, BBC News, Jun. 8, 2010, available online. ↩

99. 99.

    Briana Duggan, Samson Ntale & Brent Swails, Uganda’s Museveni Extends 30-Year Grip on Power, CNN, May 12, 2016, available online. ↩

100. 100.

     The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, 867/15, Judgment (Supreme Court of Appeal of South Africa, Mar. 15, 2016) [hereinafter South Africa Judgment], available online. ↩

101. 101.

     Id. ↩

102. 102.

     Attorney General et al. v. Kenya Section of International Commission of Jurists, Civil Appeal 105 of 2012 & Criminal Appeal 274 of 2011 (Consolidated), Judgment (Kenya Court of Appeal, Feb. 16, 2018) [hereinafter Kenya Judgment], available online. ↩

103. 103.

     Sewell Chan & Marlise Simons, South Africa to Withdraw from the International Criminal Court, N.Y. Times, Oct. 21, 2016, available online; Secretary-General of the United Nations, C.N.805.2016.Treaties-XVIII.10 (Depositary Notification), Burundi: Withdrawal (Oct. 28, 2016), available online. ↩

104. 104.

     Apiko & Aggad-Clerx, supra note 7, at 9. ↩

105. 105.

     Democratic Alliance v. Minister of International Relations and Cooperation et al., 83145/2016, Judgment (High Court of South Africa, Feb. 22, 2017), available online. ↩

106. 106.

     Apiko & Aggad-Clerx, supra note 7, at 9. ↩

107. 107.

     Pillai, supra note 12. ↩

108. 108.

     African Union, Assembly/AU/Dec.622(XXVVIII), Decision on The International Criminal Court (Jan. 31, 2017), available online; African Union Backs Mass Withdrawal From ICC, BBC News, Feb. 1, 2017, available online. ↩

109. 109.

     Mohammed Momoh, Africa: Nigeria Opposes Mass ICC Withdrawal, All Africa, Jan. 27, 2017, paywall. ↩

110. 110.

     Sarah Rayzl Lansky, Africans Speak Out Against ICC Withdrawal, HRW (Nov. 2, 2016), available online. ↩

111. 111.

     Id.; Elise Keppler, AU’s “ICC Withdrawal Strategy” Less than Meets the Eye, HRW (Feb. 1, 2017), available online. ↩

112. 112.

     Id.; South Africa: Continent Wide Outcry at ICC Withdrawal, HRW (Oct. 22, 2016), available online. ↩

113. 113.

     South Africa Judgment, supra note 100; Kenya Judgment, supra note 102. ↩

114. 114.

     African Union, EX.CL/411(XIII), Report of the Commission on the Use of the Principle of Universal Jurisdiction by Some Nonafrican States as Recommended by the Conference of Ministers of Justice/Attorneys General (Jun. 24, 2008), available online. ↩

115. 115.

     Id. ¶ 82. ↩

116. 116.

     Id. ↩

117. 117.

     Al Jazeera Interview, supra note 51. ↩

118. 118.

     Id. ↩

119. 119.

     Apiko & Aggad-Clerx, supra note 7, at 4. ↩

120. 120.

     Id. at 10. ↩

121. 121.

     Id. ↩

122. 122.

     Ms. Fatou Bensouda, ICC, available online (last visited Dec. 1, 2024). ↩