Mass African Withdrawal from the ICC: Far from Reality

Introduction

One hundred and twenty two countries are States Parties to the Rome Statute of the International Criminal Court (“ICC”).1 Thirty-four are in Africa, making African states the largest continental bloc of ICC signatory countries.2 Many African nations believe that the International Criminal Court is targeting Africa in its prosecutions. The Democratic Republic of Congo, Central African Republic, and Mali referred situations to the Court in the past, but dissatisfaction with the Court is now prevalent on the continent.3 Recent events in the Kenyan Parliament and the African Union have led to the possibility of a large-scale withdrawal from the ICC by African nations. With Kenya leading the charge, there is increasing potential that these nations may close ranks and reject the ICC’s jurisdiction, resulting in a serious blow to the Court. However, most African signatories have not yet taken a stand on ICC withdrawal. Only a few African states parties have publicly stated a desire to withdraw from the Court’s jurisdiction. While it is clear that criticism of the ICC’s actions in Africa is prevalent, the African bloc’s withdrawal from the ICC is far from a foregone conclusion.

Supporting Withdrawal

The ICC is currently prosecuting the Kenyan Deputy President William Ruto for crimes against humanity after the 2007 Kenyan Presidential elections.4 Prosecution against President Uhuru Kenyatta is scheduled to begin in November.5 In light of these prosecutions, Kenya appears to be leading the charge urging African states to withdraw from the ICC. On September 5, 2013, after comments about the ICC’s African bias and in opposition of the prosecution of its sitting heads of state, Kenya’s parliament voted to withdraw from the Rome Statute and the jurisdiction of the International Criminal Court.6 Ultimate approval of withdrawal will be with the current government, President Uhuru Kenyatta and Deputy President William Ruto—the very leaders being prosecuted.

The African Union (“AU”) is also contemplating action. After expressing dissatisfaction with the ICC’s prosecutions in Africa, the African Union will convene the leaders of its fifty-four nation members this October in Ethiopia.7 The AU discussion will center on a collective withdrawal of the African state party signatories from the ICC.8 While there is no way to effectively predict the outcome of such discussion, there is a range of opinion amongst African states, as expressed through public statements and media outlets.

In addition to Kenya, there are a few leaders of African nations who expressed either support for a collective African Union withdrawal or extreme criticism of the ICC. Uganda’s President voiced doubt previously about the ICC’s neutrality and Uganda’s Minister of Foreign Affairs Okello Oryem stated that Uganda would likely join a “summit-level” ICC withdrawal recommendation, in solidarity with Kenyan’s leaders.9 In 2009, Benin’s President expressed the view that the ICC “is chasing Africa.”10

Some of the most vocal opponents of the ICC are African Union members, but not states parties to the Rome Statute. Ethiopia, as chair of the AU, supports an AU joint withdrawal from the ICC.11 The Ethiopian Prime Minister, Hailemariam Desaleg, has also publicly condemned the ICC prosecutions, claiming they “have degenerated into some kind of race hunt” of Africans.12 Sudan consistently expresses the opinion that withdrawal from the ICC is in the best interests of African nations as targeting African leaders is a consistent practice by the ICC and a detriment to Africa.13 Zimbabwe, a member of the African Union that signed, but did not ratify the Rome Statute, believes Kenyan’s withdrawal is “well-founded.”14 Rwanda’s President and Minister of Justice have both come out over the past year with extreme criticisms of the ICC.15

Leaning Against Withdrawal

A number of African countries stated that they do not have any concrete plans to withdrawal from the ICC.16 The influence of these prominent and larger AU states may play an important role in preventing a bloc-withdrawal.17 In regards to leaving the ICC, the South African Foreign Ministry expressed that the country is far from a position of withdrawal.18 South Africa does, however, support the return of Kenyatta and Ruto to Kenya for trial and backs “the AU position which says if there is domestic capabilities to try them domestically, then that should be the course of action.”19 Nigeria’s foreign minister Nurudeen Muhammed stated that Nigeria does not hold a “grudge against the ICC,” which can be interpreted as supportive of the ICC.20 Wylbur Simusa, the Zambian Minister of Foreign Affairs, says his country remains for now a part of the ICC, with further study of the issue required.21

Tanzania has historically been very supportive of the ICC as host of the International Criminal Tribunal for Rwanda in Arusha. Recently, Tanzania’s Attorney General Fredrick Mwita reiterated that the country is a friend of the ICC, but urged the court to support an appeal that would allow Kenyan Deputy President Ruto to be tried in absentia.22 In addition to Tanzania, the countries of Burundi, Uganda, Rwanda, and Eritrea (Rwanda and Eritrea are non-states parties) also filed similar requests to present as amicus curiae.23 Except for Uganda and possibly Rwanda, these countries urge limits and changes within the ICC but have not called for withdrawal.

In a 2013 AU resolution condemning the actions of the ICC in Africa, only Botswana registered a formal reservation: “The Reservation of the Republic of Botswana on the entire decision was entered.”24 Botswana’s President has also expressed that the ICC should be allowed to carry out its mandate in the prosecution of the Kenyan leaders.25 In 2011, the President and Foreign Minister of Burkina Faso also took rare positions and publicly defended the work of the ICC in Africa and expressed the essential need for the court.26 Senegal’s historic support of the ICC might suggest opposition to withdrawal.27

No Position on Withdrawal

The majority of African states parties to the ICC have registered no formal opinion on withdrawal from the Court. Many of those silent are expected to wait until the AU summit to register a decision. Among others, countries such as Ghana, Chad, Niger, Côte d’Ivoire, and Tunisia have expressed no formal position on withdrawal.

Conclusion

Mass withdrawal by African States Parties to the ICC would have significant negative ramifications on the ability of the Court to fulfill its mandate. There may be numerous African Union members that support withdrawal, but many are not ICC States Parties. While Kenya’s charge to withdraw has some supporters, the majority of ICC States Parties in Africa have not yet agreed with this position, and many likely will not. Criticism of the ICC in Africa may be rampant, but withdrawal of the African bloc is not inevitable.