ICC mass withdrawal plan could mean a new dawn for African institutions

The recent decision of the African Union (AU) to approve a strategy for a mass withdrawal from the International Criminal Court (ICC) is signalling Africa's increasing frustration towards the perceived biased attitude of the court, analysts have claimed.

The AU's decision approved plan – which is not legally binding – came as no surprise after two African countries – South Africa and Burundi – announced their withdrawal in 2016, claiming, among other things, that the ICC was biased towards African nations.

South Africa had longed warned it would leave the ICC following widespread criticism for its refusal to arrest Sudan's President Omar al-Bashir, wanted by the ICC for alleged crimes including genocide committed during the Darfur conflict, which began in 2003.

Bashir has always rejected the charges and refuses to stand trial as his country does not recognise the ICC's jurisdiction, which the head of state slammed as "a tool to terrorise countries that the West thinks are disobedient."

Gambia, under the leadership of former leader Yahya Jammeh, also announced it would pull out from the organisation, arguing the court "ignores war crimes" committed by Western countries. But new leader Adama Barrow said he will revert the decision.

Kenya, which the ICC is currently investigating, said it was watching the withdrawals "with very keen interest."

Is the ICC biased against African states?

Some African leaders and analysts have claimed the ICC seems prone to prosecute African figures, while it ignores perpetrators of the same crimes in other parts of the world.

A spokesperson for the court has not replied to a request for comments. However, the ICC has always denied allegations of bias.

"For many of these states, the bias of the ICC is not 'alleged' but rather deeply felt," international lawyer Robert Amsterdam, founder of Amsterdam & Partners LLP, told IBTimes UK.

Since its establishment in 2002, the court has opened 10 investigation. One in Georgia, and the rest in Africa: Central African Republic, Ivory Coast, Sudan, the Democratic Republic of the Congo, Kenya, Libya, Mali and Uganda. All the people indicted by the court are Africans.

"ICC prosecutors have missed many opportunities to demonstrate a more global outlook by investigating crimes against humanity in Thailand as well as other incidents in Asia and Latin America, but instead their attention usually lands on the easiest targets," Amsterdam continued.

Some have pointed out that the majority of African states signed and ratified the Statue of Rome – the treaty which set up the court – while other countries, such as the US, signed it but did not ratify it. At present, there are currently 34 African countries that are signatories of the Rome Statute.

A lack of strong institutions across the African continent could explain the high volume of Africans indicted by the ICC. Some have also argued that the existence of other tribunals, such as the ones of former Yugoslavia and Cambodia, have reduced the amount of cases for the ICC.

However, Phil Clark, reader in international politics at Soas University, London, told IBTimes UK the ICC intervened in situations where local institutions were already investigating cases.

"For example in the Democratic Republic of Congo, Libya and Côte d'Ivoire. This makes no sense. These cases – when domestic courts are already active – should be left to African states to handle on their own, without ICC interference," he said.

"It was a huge mistake by the ICC to focus only on African conflicts and African suspects in its first 15 years. This creates the strong impression that the global court is picking on the weakest states, while refusing to investigate crimes by more powerful states, including members of the UN Security Council," Clark continued.

Is a mass withdrawal likely?

Not all African countries are in favour of a mass withdrawal, which is unlikely to happen in the near future.

An AU spokesperson said the organisation's debate on the ICC – held in Ethiopia's capital Addis Ababa on 1 February – was quite divisive, a clear sign that the will to leave the court is not unanimous.

Senegal, Nigeria and Botswana are among the nations that have expressed reservations against the mass withdrawal.

"One of the most vocal supporters has been Nigeria, because President Muhammadu Buhari's government is currently discussing with the ICC prosecutor the possibility of opening criminal cases against Boko Haram [terror group],"Clark explained.

"The strategy calls for a future strategy to reform the ICC and, failing that, to consider a mass withdrawal," he continued.

Increasing resentment towards the court's alleged bias against African countries is undeniable. However, the AU's backing for the strategy is calling for ways to limit the ICC jurisdiction in the continent.

This does not have to result in a mass withdrawal. Instead, it could be used to foster the creation of stronger institutions in Africa.

"As long as some African states see cooperation with the ICC as in their national interest, they will continue to back the Court and resist attempts to initiate an Africa-wide exodus," Clark concluded.