At the recently concluded 28th African Union (AU) Summit in Addis Ababa, heads of state and government adopted a decision on a strategy for withdrawing from the International Criminal Court (ICC).

The decision is not binding on the 55 member states, but remains controversial. A team from the Institute for Security Studies who attended the summit reports that three African states immediately expressed reservation to the decision, with several others joining.

The relationship between African states and the AU with the ICC has been fraught following years of tensions, mainly due to indictments of sitting African heads of state.

Within the AU, the expanded Open-Ended Committee of Ministers of Foreign Affairs is tasked with developing strategies to implement various decisions of the Assembly related to the ICC. Last year, subsequent to an intervention from Kenya’s President Uhuru Kenyatta, the continental body decided at its 26th Summit in Addis Ababa to look into possibilities for a collective withdrawal of African states parties to the Rome Statute of the ICC.

There are a total of 34 African states parties to the Rome Statute, although this number will decrease by the end of this year. Burundi and South Africa have formally initiated withdrawal processes. The Gambia, under former president Yahya Jammeh, publicly announced its intention to withdraw from the Rome Statute in November 2016.

Its new president, Adama Barrow, has however promised that the Gambia would return to international institutions such as the Commonwealth, and put an end to any processes initiated by his predecessor to withdraw from the Rome Statute. The Gambia is one of the African states that expressed their reservation to the AU Summit decision on an ICC withdrawal strategy.

It is significant that no other African state party to the Rome Statute has indicated an intention to withdraw following the developments at the AU Summit.

Since the first AU decision on the ICC in July 2009, the continental body has cited various concerns related to the court; mostly based on allegations of bias against African leaders.

To date, the ICC has 10 situations under investigation, nine of which relate to international crimes of genocide, war crimes and crimes against humanity committed against African citizens.

Prior to being adopted at the AU Summit, leaked drafts of the AU’s withdrawal strategy revealed a fairly accurate historical and political reference to the creation of the ICC and the role that African states played, given the evils of apartheid in South Africa and the genocide in Rwanda. This culminated in a continental resolve that initially hailed the ICC as ‘a beacon of emancipation – a solution for the continent’s injustices’.

The strategy, however, decries that since the ICC opened its doors in July 2002, its African focus – along with accusations of selectivity – led to progressively worsening relations between the ICC and the AU.

The crux of the AU withdrawal document is its two-pronged strategy, comprised firstly of legal and institutional measures; and secondly, political measures.

The legal and institutional strategies include amendments to the Rome Statute that created the ICC; reform of the United Nations Security Council (UNSC); enhancement of African representation at the ICC; strengthening national criminal justice systems and the ratification of the Protocol on the Amendments on the Statute of the African Court of Justice and Human Rights, relating to an international crimes jurisdiction.

The political strategy, on the other hand, includes the continued use of the Open-Ended Committee of Ministers of Foreign Affairs to engage with various stakeholders in the international criminal justice system, namely the Assembly of States Parties (ASP) to the Rome Statute, the UNSC, the permanent five members of the UNSC, Russia and China, the President of the ASP, the African Group of States Parties based in New York and The Hague, and the Prosecutor of the ICC.

Commentators have criticised the withdrawal strategy for being a misnomer, which is indeed correct.

A number of the strategies outlined above would require the continued engagement of African states parties within the Rome Statute system. It would otherwise be impossible, for example, to enhance African representation in the ICC, or engage with the African Groups in New York and The Hague to propose amendments to the Rome Statute outside of the ASP.

At the ministerial-level meetings of the past AU Summit, a number of states – such as Nigeria, Cabo Verde and Senegal – are on record voicing their dissent against withdrawal.

In this regard, the strategy affirms the sovereign right of a state to withdraw from the Rome Statute.

The AU is not a state party to the Rome Statute, and cannot therefore purport to make decisions for the collective group of states to withdraw from this statute or any other international treaty.

The eight African states that have entered their reservation to the withdrawal decision, portions thereof or requested for additional time to study the decision, are Cabo Verde, Liberia, Malawi, Nigeria, Senegal, Tanzania, Tunisia and Zambia. Ultimately, the strategy document does not impose a withdrawal, let alone collective withdrawal – as had been touted in the months following the 26th Summit decision on the ICC.

Aside from ICC withdrawal, African leaders meeting in Addis Ababa were also concerned about other serious continental matters, such as the election of a new chairperson for the AU Commission (AUC), and the request by Morocco to rejoin the organisation.

It is likely that the withdrawal strategy was influenced by the dynamics around these elections, along with other geopolitical concerns. Nevertheless, the strategy reflects the current mood of African heads of state on international criminal justice in Africa.

The Institute for Security Studies has previously pointed to the need for a reform at the UNSC. Given its current configuration and prominent role in the Rome Statute, this body has created an imbalance in international justice efforts.

A continued mandate to the Open-Ended Committee of Ministers to engage the UNSC, its members and other key players – such as the Prosecutor of the ICC and President of the ASP – is indicative of an open door for dialogue that should be seized.

The strategy pronounces itself on the need for African states to strengthen national criminal justice systems.

This reflects the strongest statement by the AU on international criminal justice, as it relates to Africa.

Within the principle of complementarity espoused in the Rome Statute, the ICC remains a court of last resort. It remains the responsibility of national legal systems to investigate, prosecute and try international crimes.

African states have been unable to effectively conduct the investigations and prosecutions needed to bring to justice those alleged to have committed international crimes against African citizens.

A strong recognition that the continent needs national laws, legal capacity and judicial mechanisms in place will only support the fight against impunity for international crimes, and help to provide access to justice for victims. This would be a true demonstration of the oft-repeated mantra, ‘African solutions to African problems’.

Written by Allan Ngari, Senior Researcher, Transnational Threats and International Crime Division, ISS Pretoria