|AU 28th Ordinary Session, January 2017, Addis Ababa, Ethiopia|
The 28th ordinary session of the Assembly of the African Union, finally came to an end on the 31st of January 2017 in Addis Ababa. One of the many topical issues towards the end of the summit was the adoption of the common strategy document on withdrawal from the International Criminal Court (ICC). The grievances that African states have with the international criminal justice system are well documented, however, it appears the lack of progress in resolving those contentions has led to the adoption by the AU Assembly, of the withdrawal strategy document. At first instance, this move might tempt one to envision doom and gloom for the continent, let alone the international criminal justice system. However, when one considers the strategy in its entirety, not all is lost, in fact, one could argue that the strategy is a reflection of the glass being half full as opposed to being half empty.
The withdrawal strategy is a separate document that was adopted within the AU Assembly decision on the ICC. The decision does not provide any details about the contents of the strategy but simply adopts it. The withdrawal strategy document itself, which is on file with the author, seems to detail its main objective, as the achievement of equity in the application and enforcement of global justice in order to enable the establishment and development of a regionalised system of international criminal law. In order to achieve this, the strategy details two avenues, firstly, by way of legal and institutional strategies such as the implementation of the amendments to the Rome Statute; reform of the UNSC; strengthening national criminal justice mechanisms of member states; ratification of the Malabo protocol as well as increasing African representation in the ICC. The second avenue contained in the withdrawal strategy document entails political strategies which involve engagement with the UNSC, Assembly of State Parties (ASP) and the ICC´s Office of the Prosecutor (OTP) among others. Given the already long struggle by the African group of states for UNSC reform, it would seem most of the legal and institutional strategies have already been in motion for a number of years but to no avail. Some of the main goals expected from the second approach comprising of political engagements include ensuring the withdrawal of the Sudan referral situation by the UNSC as well as ensuring that the permanent 5 members of the UNSC do not veto a resolution to that effect. Given the previous refusal by the UNSC to defer not only the Sudanese situation but also the Kenyan situation, it seems rather unrealistic to expect a change in stance.
Additionally, the withdrawal strategy acknowledges that collective withdrawals are not recognised by international law and alludes to the possibility of individual withdrawals by African states. The document does not in any way explicitly give instructions, nor a timeline for African states to collectively withdraw from the Rome statute. Instead, it outlines a comprehensive contextual (political and historical) background as well as the legal implications for individual African states, should they decide to trigger the withdrawal clause within the Rome Statute. Therefore, any inferences that claim that the adopted strategy implies “collective withdrawal” seems rather misleading as it gives the impression that a mass exodus of African states from the ICC has been triggered. Similarly, the title of the document, “withdrawal strategy” leads to misconceptions and has polarising undertones as it allows for the impression of a mass withdrawal to be created. For the most part, the document is actually rather constructive and puts into perspective some of the most contentious issues in the application of international criminal justice matters whilst calling for continuous dialogue in order to resolve the matters.
Legal implications of the ICC withdrawal strategy
Given that AU Assembly decisions are generally binding upon member states, which may be inferred from Article 23 (2) of the Constitutive Act, it means the decision on the ICC is legally binding. However, according to the 1971 ICJ advisory opinion on the presence of South Africa in Namibia (para. 114) the ICJ opined that the text of a resolution must be analysed in order to assess its binding nature and in that regard, non-mandatory language which does not create obligations for states nor affect their legal rights is non-binding. Since paragraph 8 of the decision simply adopts the withdrawal strategy and does not explicitly provide any instruction to member states, this implies that member states do not accrue any obligations from paragraph 8 of the decision. Consequently, the said withdrawal strategy, which is a separate document from the decision, is legally non-binding on AU member states as it also creates no binding obligations upon AU member states. The withdrawal strategy can simply be equated to a political message, proposal or recommendation to African states. The Assembly´s adoption of the strategy on the other hand indicates that African leaders continue to be dissatisfied with the current international criminal justice system and might be running out of patience to continue in dialogue.
Given the lack of clear and concise instructions, timeline or repercussions upon non-compliance within the decision as well as the strategy document, each individual state still holds the sovereign right to individually decide and embark upon the withdrawal process as provided for by article 127 of the Rome Statute if they so wish. This implies that, should African states hypothetically individually decide to simultaneously withdraw from the ICC, there would be no new legal implications for each withdrawing African state apart from those laid out by article 127 of the Rome Statute.
Possibly due to the fact that the withdrawal strategy document was not circulated to state delegates before the AU Summit, it is my observation that the legal implications of the withdrawal strategy might still be unclear to member states. Additionally, the misleading title of the strategy might have triggered unnecessary panic. This might explain the 13 states which expressed reservations based on the fact that they viewed the strategy document as a violation of the principle of the sovereignty of states. Additionally, that the AU, not being a state and therefore lacking the capacity to ratify treaties, cannot adopt decisions that have implications on the membership of state parties to the ICC. This would be true if the withdrawal strategy was binding and if state parties risked facing sanctions upon non-compliance but the withdrawal strategy makes no such suggestion.
I humbly suggest that the main objective of the strategy (stated above) could still be reached even without African states resorting to individual withdrawals from the ICC, if only with a little more patience and mutual respect which seems to be running in short supply among the relevant actors. In this regard, the AU Assembly decision on the ICC highlights its dissatisfaction with the attempted engagement between the UNSC and the AU Open-ended Committee of Foreign ministers. Meeting attempts between the parties were apparently unsuccessful due to the disregard displayed by the UNSC when they sent junior representation without decision-making powers to the meeting. The committee and Assembly´s dissatisfaction can be understood against the backdrop of the long history of the AU´s efforts in trying to ensure sufficient and fair consideration of African state´s proposals among international criminal justice institutions. Though understandable, the seeming loss of patience by African leaders is somewhat disappointing since the agenda, events and dialogue at the 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the ICC in November 2016 had set a hopeful tone. The meeting had been considered one of the most progressive sessions in terms of setting up a platform for constructive dialogue regarding African states´ grievances. Through the initiative of Mr Sidiki Kaba, the ASP president, a special segment on the troubled relationship between some African states and the ICC had featured prominently on the agenda and thus signified hope for further constructive dialogue in the future.
While I am not convinced that withdrawal is the solution for the grievances African states have against the international criminal justice system, the adoption of the strategy is no surprise and to some extent understandable. Additionally, the need to initially understand the deeply complicated nature and background against which this strategy has been adopted cannot be over-emphasised. The struggle to achieve global equity within international criminal justice structures and systems is a justified and long over-due cause. The remaining unavoidable question would be whether African leaders adopted this strategy in order to protect themselves from the delivery of justice and if the efforts towards operationalising a regional international criminal justice system are only a facade to that effect? An attempt to answer these questions might be mere speculation at this point and hence legally inadmissible. For now, it might be wiser to take African leader´s explicit "commitment to fight impunity" (para 2(i)) at their word. Besides, as I have argued elsewhere (pp. 272-294), pursuing a regionalised African criminal justice system might be of great benefit to the continent and the international criminal justice system.
Guest Post by Dorothy Makaza
(Dorothy Makaza is a DAAD (Deutscher Akademischer Austausch Dienst) scholar and a PhD candidate at the University of Hamburg. She is currently a research resident at the African Union Commission on International Law in Addis Ababa, Ethiopia. Her PhD research centers on African state compliance with international criminal law. She has a broad range of interests but her main passion and specialisations lie in the fields of public international law, international criminal law, human rights law, international humanitarian law and conflict management. Dorothy holds a master’s degree in human rights and conflict management from Scuola Superiore Sant’ Anna in Italy, as well as a bachelor’s degree in law (LLB) from the University of Fort Hare in South Africa. She has previously worked and interned for various international organisations, including the Institute for African Affairs at the German Institute of Global and Area Studies and has also previously worked as a freelance consultant and researcher for Amnesty for Women, a human rights organisation she continues to be professionally affiliated with.)
|Dorothy Makaza. Ph.D Scholar DAAD|