The Fifteenth Session of the Assembly of States Parties (ASP) to the Rome Statute Scheduled to take place on 16 to 24 November comes after the month of October brought the International Criminal Court’s Africa problem to yet another crescendo. It was in October 2013 that the tension between ICC and Africa ‘reached a new height’ when the African Union (AU) in an unprecedented move convened an extraordinary summit dedicated to addressing ICC’s role in Africa.

While at the time the proposal on the withdrawal of African state parties from the Rome Statute did not sound more than an empty barking, my observation was that ‘the extraordinary summit on withdrawal from ICC challenges not only the legitimacy but also (and importantly) the very future of the ICC’. I similarly wrote elsewhere that despite the fact that no decision was taken on withdrawal during that summit ‘the worst (in ICC’s troubles in Africa) may still be to come.’

Spates of withdrawals

This last October marks the beginning of the arrival of the worst that was feared of in previous years. Now the barking of October 2013 is accompanied by a biting. African State Parties to the Rome statute have started the process of withdrawal.

On 19 October South Africa’s foreign minister Maite Nkoana-Mashabane signed an “Instrument of Withdrawal”. Earlier in the same week Burundi’s parliament adopted with an overwhelming vote a law on the withdrawal of the country from the Rome Statute. The Gambia, from where the current ICC Prosecutor Fatou Bensouda hail, joined the bandwagon by declaring its decision to withdraw on 26 October.

The false choice between justice and impunity

Unsurprisingly, this latest development has sent shockwaves unleashing fierce debate in its wake. As in past developments that attracted heated controversy over ICC’s role in Africa, this time as well the debate is largely cast in stark black and white terms as a struggle that pits the good against evil, constituents of justice against those of impunity.

Some decried South Africa’s announcement of its withdrawal from ICC as ‘a blow for victims of international crimes’. Reacting to the announcements of Burundi, South Africa and the Gambia, Secretary-General Ban ki Moon reported to have said that withdrawal from ICC raises doubts about ‘commitment to justice’. To the extent that one agrees with these sentiments, one should hold non-membership in ICC of major powers (China, Russia and the US) and other notable countries like India as a show of lack of commitment on the part of these countries. These reactions and similar others seem to suggest that the withdrawals manifest an indictment on international justice.

Beyond the binary choice

While the concern that these reactions raise is not without merit, the narrow and stark formulation renders the issue into a zero-sum debate. The issue that arises from the withdrawals is however much more nuanced and less straight forward than a simple choice between justice and impunity.

The withdrawals are not an indictment on ICC in its entirety per se, even less on the ideals of international justice. Instead they represent an indictment on the structural flaws underlying the international legal order. As it stands, the international legal order is more a mirror image of George Orwell’s animal farm than a society bound by the rule of law that applies equally to all countries, big or small. Such is a legal order characterized by ‘the absence of a moral equivalence’ in the implementation of legal principles across all countries regardless of size and political and economic endowment’ and hence with features that tend to allow might to be right.

Not only that the ICC is part and parcel of this international legal order but by its design it has been made to reinforce and entrench the Orwellian animal farm character of the system by vesting the veto holding members of the UN Security Council with the power to refer situations in some countries while shielding themselves (or close allies) from scrutiny by the ICC. As one observer put it the resultant ‘prevalence of Northern hegemony, and an implicit hierarchical … order … makes it acceptable for African leaders to be prosecuted but makes the indictment of American or British leaders inconceivable.’

Seen in this light, the withdrawals accompanying several years of discontent express Africa’s challenge to the enormous influence that the hegemonic dominance of countries of the traditional power center of the international legal order exert in shaping the conduct of the international legal order including that of ICC.

As far as ICC itself is concerned, the withdrawals relate to concerns raised over the years on how ICC has gone about implementing its mandate in Africa. The first concern was about the launching of prosecutions with respect to ongoing armed conflicts for whose resolution mediation efforts are underway. The AU seems to hold the view that in a situation of an ongoing war at the very least peace and justice must be sequenced in such a way that priority is accorded to ending violence of armed conflict and creating the conditions for peace. In its instrument of withdrawal South Africa, South Africa stated that it ‘has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute of the International Criminal Court’.

Related to this is also the concern around the prosecution of seating heads of state and governments, which, in the context of Sudan and Cote d’Ivoire, is seen as a euphemism for regime change in the name of pursuing ICC’s agenda of prosecutorial justice or as a breach of the sovereign electoral choice of citizens in the case of Kenya. It is to be recalled that it was against the background of the democratic election that brought Kenyata and Ruto to power that the extraordinary summit of 2013 took the decision of the summit that ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office’.

The issue of temporal official immunity for the duration of the term of office of heads of state and government was particularly prominent in South Africa’s withdrawal. Explaining South Africa’s decision the Minister of Justice Michael Masutha argued the ‘implementation of the Rome Statute of the International Criminal Court Act, 2002, is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act, 2001.’

No mass withdrawal but more withdrawals to come

There is going to be no mass withdrawals. This much has become clear from the debate on mass withdrawals, which featured prominently on the extraordinary summit of the AU in October 2013 and the July 2016 Summit in Rwanda. Yet, the three countries are unlikely to be the last of African states parties to withdraw from ICC.

It is expected that more African countries are expected to announce their withdrawal, with Chad, Kenya and Namibia all likely suspects. Kenya has gone far towards withdrawal with the parliamentary resolution awaiting Cabinet’s decision, as the president’s spokesperson recently reported. Similarly, Namibia’s minister of information announced in November 2015 that his government had decided to withdraw from the ICC. Uganda, which has also been vocal against the ICC, is another state party that may jump on the withdrawal bandwagon.

Where to from here?

ICC’s battered relationship with Africa is on the verge of a breaking point or so it seems. As they meet later in the month, one hopes that Assembly of States Parties to the Rome Statute would heed the adage that a crisis is too good an opportunity to be wasted. As Max du Plessis pointed out, at the level of the ASP there is a possibility for ‘a political solution to the question of whether serving heads of state should have immunity’. There is already a South African led working group at the ASP on the same subject that offers an avenue for seizing the opportunity that this crisis presented for reforming the issues bedeviling ICC. These reforms would include not only ICC’s target of prosecution (particularly as they relate to seating heads of state and governments until end of their term of office) and the exercise of the Prosecutor’s discretion with respect to both when and who to prosecute having regard to considerations of peace and security but also a conception of justice that embraces and supports measures for addressing the structural conditions that make atrocities possible. Such reforms would remove the steam from the apparently persistent opposition to ICC, enable the court to reduce the challenges of hegemonic influence to the minimum level possible and allow flexibility for pursuing the court’s mandate in a way that supports rather than stifles the transformative justice befitting societies coming out of armed conflicts and/or authoritarian violence.