ICC Membership Withdrawal: A legal or Political Question?

The African Union (AU) has settled for a non-binding resolution calling for a mass withdrawal of African states from the International Criminal Court (ICC). If Africa was crucial in the founding of the ICC, it should be ironic that Africa is now campaigning for a mass withdrawal from the ICC. What has changed?

The ICC’s partiality in the administration of justice has changed, charges the AU.  But the premise of impartiality has not been unanimously adopted by all African states to guarantee the advocated mass withdrawal. Essentially, this question has been relegated to individual member states to determine. A few African states have already decided to leave while a few others are intent on doing the same. Several African states are yet to decide whether to leave or remain?

The narrative that the ICC unfairly targets African leaders is currently the key premise for leaving the Court. But the legitimacy of this argument must be validated against the statutes of the court; its processes; admissibility of claims, and judicial decisions – case by case – on all relevant cases since inception of the Court’s operations in 2005. This would be a huge legal exercise, yet without it, the contestation over the Court’s impartiality becomes more political than legal. Otherwise, why should incumbent African leaders contest the Court’s legitimacy when such decisions go against their interests? Meanwhile, the same Court’s decisions are welcome when they favor incumbent leaders against their national insurgents? Bensouda, the ICC Chief Prosecutor is reported having questioned why African leaders have no problem with the ICC until it goes against them.

This questions the legitimacy of withdrawing from the ICC based on its perceived unfairness and impartiality. So, is Africa’s campaign for ICC withdrawal a political shielding against the injustices of its leaders?  And as such, is there an assurance that justice would be accorded to the victims of abuses on the continent if the AU’s non-binding resolution for a mass withdrawal succeeded? This must be tested against the statute’s preamble; recalling the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes while emphasizing the complementarity of the ICC with national criminal jurisdictions.

How well-placed are African states to provide justice to any victim of injustice that may occur under the four crime-jurisdictions of the ICC, i.e. Genocide, Crimes Against Humanity, War Crimes; and Crimes of Aggression?

Under the statutory meaning of Genocide in article 6, proponents of withdrawal should demonstrate that their national criminal jurisdictions are adequate enough to do away with ICC , and that state actors cannot be found liable for the crimes thereof, i.e. (i) killing members of a group, (ii) causing serious bodily or mental harm to members of the group, (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, (iv) forcibly transferring children of the group to another group, and (v), imposing measures intended to prevent births within the group.

The same presumptive test should apply for proponents of withdrawal against articles 7 and 8, providing for Crimes against Humanity, War Crimes and Crimes of Aggression respectively. To support withdrawal based on the state-sovereignty argument, there is a need to substantiate how sustainable national and/or regional conflict resolution mechanisms have been in both preventing these crimes and administering justice to the victims of the crimes. This is yet to be demonstrated by the pro-withdrawal states yet a few notable situations in Africa can attest to the effectiveness of such regional mechanisms.

Meanwhile, the premise that the ICC is inept in the face of crimes committed by non-members is plausible.  States that do not ratify the treaty are technically out of the jurisdiction of the court, making countries like the USA, Russia, Israel and Sudan out of reach of the court. Yet these states can indirectly influence the prosecution of the ICC-ratified states through the UN Security Council. Therefore, any discontented state sees non-ratification and/or withdrawal as the only option to avert ICC indictments in exercise of state sovereignty.

In the final analysis, the discontent of the pro-withdrawal countries may be based on two premises; (i) on the technicalities of articles 12, 13 and 14 of the statute itself, or (ii) on the perceived conduct of the non-ratified states who use the same articles 12, 13 and 14 to influence the prosecution of ICC-ratified states through the UN Security Council, while the non-ratified states remain immune themselves. These premises are separated by a thin line between – a legal discourse vs a political process, respectively. As such, if the latter was addressed, would the former still provide enough ground for withdrawal? Certainly, not! But if the former was resolved, it would automatically resolve the latter.

Therefore, in the need of separating the two issues, it can only be hoped that states seeking to withdraw from the court can distinguish law from politics in national consultative processes.

Featured image | The Hague, International Criminal Court | Wikimedia commons

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of The Best of Africa.

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