One of the most important decisions taken at last week’s Summit of the African Union [AU] was the adoption of a non-bonding resolution which called for a mass withdrawal of African countries from the International Criminal Court, ICC. The issue had been agitating the minds of African leaders for some time and it was hotly debated at last week’s Summit in Addis Ababa, Ethiopia. A committee was formed to work out a strategy for mass withdrawal of African countries from ICC and to also dialogue with the United Nations Security Council [UNSC] and seek reform of ICC’s statute.
AU’s contention is that ICC undermines the sovereignty of African countries and unfairly targets Africans. African leaders have also accused ICC of racism and imperialism and of being a tool in the hands of Western governments, which are themselves not subject to the court because they haven’t signed the Treaty setting it up. ICC has denied this charge, saying it has been pursuing justice for victims of war crimes on the African continent. ICC, which was formed by the Rome Statute, has 124 members. Thirty four of these are African states. AU leaders are particularly angry at ICC’s targeting of sitting African rulers, Sudan’s President Omar Hassan al-Bashir and Kenya’s President Uhuru Kenyatta. While ICC wants to try the former for alleged war crimes in Darfur, it wants Kenyatta over allegations that he had a hand in Kenya’s devastating 2007 post-election violence.
ICC’s arrest warrant for al-Bashir caused a major row in South Africa in 2015 when the Sudanese leader attended an AU meeting in Johannesburg. A South African court tried to detain and arrest him but President Jacob Zuma’s government facilitated al-Bashir’s departure from a military airfield. Zuma’s government announced later that it was withdrawing from ICC. It said it did not want to execute arrest warrants which would lead to “regime change” in other countries. In October last year the parliament of Burundi also voted to quit ICC. The same month Gambia also decided to quit, famously describing ICC as “International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.” Also unhappy with ICC is Ugandan President Yoweri Museveni who last year described it as “useless.”
Even though AU leaders had been working on their IC strategy for months, it was kept secret at last week’s AU Summit before it was adopted without a vote at a closed-door session. According to some news reports, the strategy is aimed at granting immunity to African heads of state and exempting them from ICC prosecution while they are still in office. According to the strategy document, mass withdrawal by African countries from ICC would create a “new norm” that would strengthen African customary and domestic law. Contrary to ICC’s insistence that it has the right to prosecute heads of state for war crimes or genocide, AU wants them to have immunity from prosecution. From all indications AU leaders’ position is more of a gambit than a real drive to wreck ICC. The hope is a mass withdrawal by African states, which make up more than a quarter of the court’s 124 members would force ICC to reconsider some of its ways.
There are however problems for the strategy because many African countries are unhappy with it. The two most vocal opponents of the strategy are Nigeria and Senegal. Our Foreign Affairs Minister Geoffrey Onyeama said of the decision, “What AU did was to set up a committee to elaborate a strategy for collective withdrawal. And after, Senegal took the floor, Nigeria took the floor, Cape Verde and some other countries made it clear that they were not going to subscribe to that decision.” If that was what Nigeria did, then that was a poorly considered action, in our opinion. This matter had been under discussion among African governments for many months, if not years and Nigeria’s objection to the strategy to put pressure on ICC was well known to other African states. If a majority of them still backed this resolution, it was not good at all for our leadership position among African nations to go public with an objection and an apparent effort to wreck an African consensus.
It is true that the AU Summit’s consideration was essentially selfish, if all they sought to protect were serving African rulers. It is noteworthy that such leaders could still be arrested and prosecuted when they are no longer in power, as happened to former Liberian President Charles Taylor. If that was so and since the strategy is merely meant to exert pressure and call for this concession, Nigeria ought not to go out of its way to undermine the AU resolution. Given the number of AU member states [55] and the diversity of their political systems, history and ideological leanings, not to mention individual leaders’ idiosyncrasies, it is very difficult to find unanimity of any issue, especially one as important as this one.
When decisions are made by a majority, it is wiser for the minority to tag along. For example, when the then OAU Summit decided in 1973 that all members should sever ties with Israel because it was occupying the territory of a fellow OAU member [Egypt], we were not happy that members such as Mobutu Sese Seko’s Zaire refused to comply. One day the tables will turn and Nigeria could be part of a majority in an AU resolution which others will object to and proceed to undermine. Nigeria’s current stance is not wise. We should immediately review it.
