Is Africa, ICC set to divorce?

Kenyan president Uhuru Kenyatta (centre) appears at the ICC in relation to the post-election violence that left at least 1,300 Kenyans dead in 2007. The court last year dropped the charges against Mr Kenyatta, citing difficulties in gathering evidence against him.  

When former Congolese warlord Thomas Dyilo Lubanga was convicted by the International Criminal Court (ICC) for war crimes and was handed a 14-year prison sentence in July 2012, there were chants of jubilation and plaudits from the continent towards the international adjudication system: for he was the first person ever on the court’s most wanted list to be convicted.

The chants were, however, short-lived. Now, at least half of the continent wants to go out.

At the upcoming 27th African Union Summit in Kigali, Rwanda between July 10-18, high on the agenda is adoption of the motion to walkout en masse from the Hague-based court, which the continent’s leaders accuse of being a vestige of colonialism.

If it happens as expected, Africa’s strongmen pushing the idea will spend the rest of their lives chest-thumping, but above all, the move will mark the beginning of a new dawn in international relations. And similarly, if it does not happen, the failure will be another missed opportunity—not the first though—and public relations misadventure.

What it takes to quit
Procedurally, according to ICC’s regional outreach coordinator Maria Kamara, if a state party wishes to withdraw from the Statute, it must notify the UN Secretary General in writing. The withdrawal takes effect, at earliest, one year after the date of notification.

However, withdrawal by a state does not “remove any of its obligations that arose from the Statute while it was a party to it up to the date on which the withdrawal became effective.

The state is still under an obligation to cooperate with the Prosecutor and the court in connection with any criminal investigations and proceedings that commenced prior to the date on which the withdrawal became effective.”

Currently, the court has probes underway in Uganda, Ivory Coast, Libya, Sudan, DR Congo, Central African Republic, Uganda, Mali, Burundi, Nigeria, and Guinea.
Elsewhere, the court is looking at cases in Georgia, Afghanistan, Colombia, Ukraine, Iraq and Palestine.

Factual or fictional pullout?
Foreign Affairs permanent secretary James Mugume, in an interview, said this time, “the commitment” to pullout is “real” and mostly likely, African leaders meeting “will pass the motion.”

“It will be a very crucial meeting,” he said. “At the last summit, a committee [led by Ethiopian Foreign Affairs minister Tedros Ghebreyesus] was tasked to engage with the UN Security Council with discussions resolving around resetting the balance of the court.”

The committee was dispatched at the last AU Summit in the Ethiopian Capital of Addis Ababa in January. The committee, among others, was also to engage the 15-member UN Security Council, the world body’s most powerful organ, on the previous decision for deferral of the ICC, the double warrants against Sudan president Omar al-Bashir and proceedings against Kenya deputy president William Ruto in accordance with Article 16 of the Rome Statute.

“But when they went to New York [at the UN headquarters], they were treated with contempt and hence there was no meaningful discussions,” Mr Mugume added.

Thirty four African countries, led by Kenya [president Uhuru Kenyatta moved the motion] resolved to withdraw from the Rome Statute that established the ICC. Before pulling out, they, however, delegated an Open-Ended Committee of Foreign Affairs ministers to discuss the intention with the Security Council.

The committee held a meeting on April 11 in Addis Ababa, attended by representatives from, among others, South Africa, Uganda, Kenya, Somalia, Chad and Mozambique.

In its summary report, the committee resolved it will call for “withdrawal” from ICC unless three conditions are met, notably, amending the ICC’s Rome Statute to include immunity for sitting heads of state and high level officials, which Mr Mugume said is an international proclamation under law that must be protected.