Last year, three countries Burundi, the Gambia, and South Africa threatened to pull out of the ICC.
Even the African Union itself, while it cannot force countries do to anything, issued a call for African states to consider a withdrawal from the court.
A draft document, which is in circulation among senior AU officials, describes a “withdrawal strategy” for member states, if reform demands are not met, according to diplomatic sources.
Of course, such a strategy would have to be a coordinated effort, but nothing can be forced upon member states.
The ICC was established in July, 2002, the same date of the Rome Statue, a multilateral treaty which is the base of the Court’s foundation and governing document.
States that are party to the Rome Statue through ratification, effectively become member states of the ICC.
At present there are 124 states party to the Rome Statue with a third of those coming from African states.
Such a mass withdrawal from the ICC could potentially leave the institution weakened as the majority of its members are African.
But why are African States looking to turn away from the ICC?
Tarig Abdel Fatah, is a lawyer, and is in charge of international relations with the Sudan Bar Association.
He says “having a court like ICC to accuse African leaders and to file more than 10 cases before the ICC [to date], is a big question which makes the African leaders” think twice about the international court.
One of the issues that many have been fighting for is impunity for sitting heads of state.
Kenya’s Foreign Minister, and candidate for the chairperson of the AU Commission, fought hard to see that President Uhuru Kenyatta was given immunity as a sitting head of state.
Mama Koite Doumbia, is the co-director of the Trust Fund for Victims, which works in tandem with the ICC.
She is its representative in Africa and tries to speak for those who were victimized by atrocities committed by African leaders across the continent.
Doumbia says the idea of reforms, specifically within the ICC, is acceptable.
“But we cannot accept immunity, even if you are a leader, or a simple citizen,” she says.
Fatah also agrees that there should not be any kind of immunity in Africa.
However, certain leaders, such as Uganda’s Yoweri Museveni, have referred to the ICC as a “bunch of useless people”. Others have referred to the International Court as a Caucasian creation.
Doumbia notes that the “ICC is for all the world”, adding “in Africa, the problem is not Africans. [The problem is] African leaders, not all, but some.”
But if African states really want to leave the ICC, what is being offered as a viable alternative? Fatah offers this solution:
“Currently there are courts in Arusha, it is a modified court from the current court, also in Arusha. They just merged the two courts to make a new one called the African court on Humans and People’s Rights.
“There is also a traditional justice, not part of the international law, [but] it is workable in the case of South Africa, [as] they came to peace and reconciliation through the mechanism of the traditional justice. And a decision has been taken by the AU, to adopt the policy of traditional justice to make it a legal framework in Africa."
How would this traditional justice be imposed upon different states?
Fatah adds that communities in Africa already resolve their disputes and conflicts using this tool of reconciliation, by using local chiefs and leaders of the local communities.”
The notion of the ICC as an anti-African institution remains a main issue for those seeking to get out of the Rome Statute.
Doumbia says the problem is not the ICC; in fact the ICC is the last stop to seek justice. “If at a national level we had a way to judge these people, [then] it’s [ICC] not a problem”.
But at present, she believes “African countries do not have a strong capacity to judgethese authors of [crimes]”. Thus until a more concrete and viable option is presented, the ICC should be accepted.
She adds that looking out for the victims should remain a priority for the states, and not deliberating whether or not a head of state is immune to prosecution, “this is a political decision. This is not for the people, this is for [the] problems of the leaders”.
If the states really are concerned about justice, Doumbia asks, why don’t they contribute more to the Trust Fund put in place by the Rome Statute?
She goes on to explain that Africans are not contributing to the fund.
“It’s the EU giving them the money, it’s Japan, Estonia, every country giving money to help them”, in reference to the financial contribution by each country to the Fund.
She adds the only two African countries to have contributed to the fund were Senegal and South Africa.
If African states really are serious about addressing issues of justice, until there is a concrete mechanism in place that all countries abide by, perhaps it is just easier to work with the ICC than against it.