At the end of the recent 28th African Union (AU) summit in Addis Ababa on January 31, a recommendation emerged that collectively member states should withdraw from the International Criminal Court (ICC). The AU is not a party to the Treaty of Rome, which established the ICC, and its recommendation cannot compel individual states to withdraw. According to the media, Nigeria, Senegal, and Tanzania opposed the AU recommendation and other states declined to commit themselves. In the aftermath of the recommendation, on February 1, Nigeria publicly reiterated its intention to remain within the ICC.
The most vocal advocates for withdrawal have been Kenya, Burundi, and South Africa. Kenyan President Uhuru Kenyatta and Vice President William Ruto were both indicted by the ICC for crimes connected to their 2007 elections. Both cases collapsed, with the Kenyan government declining to cooperate with the ICC and, possibly, tampering with witnesses. South Africa’s President Jacob Zuma has been widely censured for his failure to hand over Sudan’s Omar al-Bashir when he visited South Africa in 2015 for an AU heads of state summit. Al-Bashir has been indicted by the ICC. As a signatory of the Treaty of Rome, South Africa was obligated to hand him over for trial. Zuma failed to do so and even helped facilitate al-Bashir’s travel back to Sudan. This is apparently a violation of both the Treaty of Rome and South African law. As such, there is currently a case against him still making its way through the South African courts. The Burundian government took steps to withdraw from the ICC following a credible UN investigation of systematic human rights abuses, including the discovery of mass graves.
However, in Kenya legislation to bring about withdrawal from the ICC has lapsed. Similar legislation has not been introduced in South Africa. Further, according to Deutsche Welle, both the Kenyatta and Zuma governments appear to be exploring possible amendments to the Treaty of Rome – which implies their continued membership. Nevertheless, sentiment in sub-Saharan Africa is widespread that the ICC “unfairly” has focused on the continent, and ignored abuses elsewhere. Some African intellectuals complain that the ICC has ignored the human rights abuses committed by western nations, including those alleged against the George W. Bush administration with respect to Iraq. African nations often cite the United States as an example of why they should not be beholden to the ICC: the U.S. position is that it supports the ICC while declining to sign the Treaty of Rome. On the other hand, African elites also recognize that there is at present no alternative to the ICC for holding the chiefs of signatory states accountable. Most of the ICC cases brought against Africans have been at the request of African governments at the time, including those involving Kenyatta and Ruto.