Interesting times for the future of Hague-based ICC

The 15th Assembly of State Parties to the Rome Statute ended at The Hague last week, but without the mass withdrawal by African member states taking place, as had been feared.

Ahead of the Assembly, three African member states of the Rome Statute, Burundi, South Africa and the Gambia, had each announced their withdrawal from the International Criminal Court, a development that raised some fear that the African Union would use the Assembly to stage a mass withdrawal from the ICC, as it has repeatedly threatened.

Far from the mass walkout, the 15th Assembly proved a vital platform at which a number of African countries pledged their support for the court.

While Nigeria declared its “unflinching” support for the ICC and called for more resources for the court, the Democratic Republic of Congo announced it would not withdraw and pledged its “firm commitment” to continue cooperating with the ICC.

Botswana, traditionally the strongest supporter of the ICC among African states, also promised its continuing support while Ghana, Tunisia, Ivory Coast, Tanzania, Mali and Burkina Faso, all gave speeches that were supportive of the ICC.

Even Uganda, a country that has reserved some of the strongest criticism for the court despite also referring the situation in the north of its territory to the same court, likewise pledged that it would continue cooperating with the ICC.

Only Namibia, an emergent critic of the ICC, maintained that withdrawal remained an option, while all the other members said that they would seek to reform the ICC from within.

What is to be made of the rather conciliatory positions that these African states have taken in relation to the ICC?

BROKEN RELATIONS
This is not the first time that African states are taking inconsistent positions on the court.

During the 2013 assembly, which followed the tumultuous special summit of the African Union that had taken place in Addis Ababa only a few days earlier, African states were widely expected to pursue the very toxic line that Kenya had mobilised them into taking in Addis Ababa.

Contrary to this expectation, African members of the ICC failed to condemn the court during a special debate on the relations between the AU and the ICC, whose inclusion in the agenda they had demanded.

During the next two assemblies, in New York in 2014 and at The Hague last year, African countries were similarly measured in their positions, which left Kenya and Uganda as the sole hardliners in the deliberations that took place during these two meetings.

Ethiopia, a non-state party, has also often spoken strongly against the court.

One view is that the politeness that African countries displayed at the recent assembly will, once more, be abandoned once the AU convenes its next summit in January.

However, with three African countries having carried out the threat to withdraw from the ICC, the AU has already done its worst and the recent assembly would have been an ideal place for all the countries seeking a break with the court to do so.

While the debates within the AU regarding the ICC often produce some demurs, this is the first time that AU member states have been placed in a position where they have to publicly take divergent positions on the ICC.

Even at this early stage, it seems reasonable to conclude that AU solidarity on relations with the ICC, which made the body so effective in its backlash against the court, has been broken in a very open manner.

The fact that no additional country joined the three that had taken the decision to leave the court suggests that the relationship with the court will increasingly become an individual matter for each member state, rather than an issue on which the AU decides for the continent.

TIME WILL TELL

While this may be a bit exaggerated, some colleagues who attended this year’s assembly claimed that the tone of its representatives suggested that South Africa is already regretting its decision to pull out of the ICC and may be looking for a way to return to the fold.

To be sure, a number of the African states have stronger reasons than others for remaining in the ICC.

For example, despite a record of strong criticism against the court, Uganda still handed to the court Dominic Ongwen, an ex-Lords’ Resistance Army commander and a long-term fugitive from ICC justice, who was captured in the Central African Republic last year.

A number of the cases before the ICC were requested by the countries from which those cases originated.

These include the two different situations from the Central African Republic, the DRC, Mali, Ivory Coast and, of course Uganda.

These countries have a stake in continuing to support the ICC which is currently serving their interests, and are unlikely to resort to an unthinking withdrawal from the court.

The next AU summit is likely to set the tone for the possible discussion of the kind of reforms that African countries may want to see in the ICC.

While the AU has previously mandated its Open-Ended Committee of Foreign Ministers, established to follow AU decisions regarding the deferral of the Sudanese and Kenyan cases before the ICC, to also prepare a roadmap for the mass withdrawal from the ICC, a number of AU member states have also opposed the very idea of a withdrawal.

While the ICC seems safe for now, these remain interesting times for the future of the court and only time will tell whether and how the AU clamour for reforms will be handled.

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