Imperfect ICC can play a critical role
On Tuesday at the African Union summit, the AU adopted a strategy for member countries to withdraw from the International Criminal Court (ICC).
Although much has been made of it, the decision is not legally binding and it remains the prerogative of individual member states to withdraw from the ICC.
Nonetheless, the political implications of the decision are considerable and reflect significant discontent with the international justice architecture and the inequalities inherent in the ways in which justice functions in the global system.
The decision comes in the aftermath of South Africa, Burundi and the Gambia withdrawing from the court at the end of last year. The AU has adopted a policy of nonco-operation with the court since the indictment of Sudanese President Omar al-Bashir.
The court has also faced significant opposition from some states, most notably Kenya, which, since the indictment of President Uhuru Kenyatta and Deputy President William Ruto, has expressed vocal dissent about the ICC.
One of the issues outlined in a leaked draft of the AU withdrawal strategy is concern about the relationship between the United Nations Security Council and the ICC.
The AU is also perturbed about the African focus of the court, which to date has only one open investigation outside Africa – the probe in Georgia. Other concerns pertain to immunity for heads of state and procedural aspects of trials.
But it is unlikely that the AU’s move will result in a mass exodus from the court.
First, the decision to adopt the strategy is not legally binding. The draft strategy affirms that it is the responsibility of member states to withdraw from the ICC. There is no provision for collective withdrawal in international law, which the strategy document acknowledges.
The draft strategy suggests that additional research should be done on collective withdrawal. Yet this has no legal bearing on the actions of individual states.
As such, any decision on withdrawing from the ICC would be the prerogative of individual AU member states. It would have to be implemented in accordance with domestic legislation, which, in some cases where the Rome Statute has been domesticated, might require the repeal of legislation – or may require parliamentary approval.
The decision was also passed with reservations by several states, including Nigeria, Senegal and Cape Verde and Liberia. Malawi, Tanzania, Tunisia and Zambia requested more time to study it.
There is no doubt that the political ramifications of the decision may induce some African states to withdraw from the court but to suggest that there will be a mass withdrawal is to homogenise a continent with vastly divergent approaches to justice and with radically different politics inveigled in the instruments of justice.
Indeed, although many liberal advocates of the ICC criticise the AU’s conflation of law and politics (yet suspiciously ignore the similar conflations of others), perversely, in some cases, the role the court can play in local politics has staved off more widespread criticism.
The politics of self-referrals are particularly pertinent here, as the court can function as a mechanism to externalise domestic issues.
In Uganda, the Democratic Republic of the Congo, Nigeria, Côte d’Ivoire and Gabon, the prospect or reality of the court criminalising opponents of the government while all but eschewing any accountability for sitting governments functions as a useful mechanism by which to internationalise domestic conflict, criminalise opponents and, in many ways, judicialise the political.
The effects of this are potentially egregious. University of London academic Phil Clark, for example, has shown how the selectivity of defendants has embedded itself in new conflict dynamics in Uganda. But when it comes to questions of withdrawal, it is precisely these dynamics that stymie the possibilities of mass withdrawal from the court.
Of course, there are states that have consistently advocated for the court and which, for reasons located in the political or the ethical, subscribe to the precepts of the ICC.
Senegal, for example, whose minister of justice, Sidiki Kaba, is the current president of the ICC’s Assembly of States Parties, is keen to represent the court as a centre for justice and is vehemently opposed to any possibilities of withdrawal, as is Botswana, which has consistently shown unwavering support for the ICC.
As such, cries about the prospects of mass withdrawal, either jubilant or derisive, reflect neither the legal reality of the effect of the withdrawal strategy nor a contextual appreciation for the disaggregation of approaches to law, justice and their intimacy with power.
The ICC is an imperfect institution, but it is also an institution that can deliver a form of justice for egregious crimes and, rather expediently, that has proven useful for many in the exercise of politics.
Despite the nonbinding nature of the withdrawal strategy, it is a significant blow to the court. In many respects, international justice is as much spectacle and politics as it is law.
In this context, a particular prevailing binary narrative about the ICC that posits criticism of the court as embracing of genocide is helpful neither to the international justice project nor to the victims in whose name its advocates so frequently purport to speak.
Since the indictment of al-Bashir, the AU and African member states have consistently voiced discontent with the court and the Rome Statute system.
Of course, some of this relates to a quest for impunity but concerns about selectivity and inequality in the global system are too easily dismissed in a combative approach.
Still, there have been some efforts to address this, even at the last session of Assembly of States Parties, where, in the aftermath of the three African withdrawals, an open bureau session dealing with African concerns was held – although there was much more dialogue about the importance of dialogue than actual commitment to concrete ways to address the concerns raised by states.
This is partly structural; the Africa focus on the ICC in part relates to the situation of the ICC within a deeply unequal global system and the confluence of its dependence on state co-operation and the unwillingness of power to be held to account.
With a crypto-fascist at the helm of the United States and a global context mired by violent conflict on every continent, the importance of holding leaders to account is essential. In order to safeguard this principle, it is critical that a certain humility be adopted about the purview of the ICC, the type of justice it administers and the politics surrounding its work, as well as a willingness to engage the concerns surrounding the institution.
It is one form of justice for one form of injustice and an important one – but if it is to survive, a more measured approach to its potential and politics ought to be adopted, particularly by those who wish to save it.
The withdrawal strategy should be a call to consider seriously the structural and political difficulties facing the Rome Statute system.
In a global context in which injustice is indiscriminately distributed, the legitimacy of an international justice system in which justice is discriminately distributed is ultimately unsustainable and counteracts the prospects of justice it purports to seek.
Kelly-Jo Bluen is the project leader for International Justice at the Institute for Justice and Reconciliation