At a January 31 summit in Addis Ababa, the African Union agreed to consider “a strategy of collective withdrawal” from the International Criminal Court (ICC) due to the belief that the court is biased against Africans. According to their founding treaty, the ICC, established in 2002, has jurisdiction to prosecute war crimes, crimes against humanity, and genocide. Unlike previous international courts, the ICC can prosecute member states or citizens of member states. Though it is composed of 124 member states, the ICC has only investigated African nations and their citizens in its fifteen years of existence, with the exception of a recent investigation into war crimes by Georgia.
ICC investigations are suggested by the United Nations Security Council or by a ratifying state. Prosecutors may pursue a case if approved by a panel of judges. In total, the ICC has opened twenty three cases at various stages of completion. These cases include an investigation into the current President of Sudan, Omar al Bashir, who has been wanted since 2009. He is charged with five counts of crimes against humanity (including torture and rape), two counts of war crimes (including directly targeting civilians during an armed conflict), and three counts of genocide. On July 10, 2012, Thomas Lubanga, the former President of the Union of Congolese Patriots and former Commander-in-Chief, was sentenced to fourteen years of imprisonment for drafting children under fifteen years of age to fight in an armed conflict in Ituri, Democratic Republic of the Congo. In addition, the former President of Côte d’Ivoire, Laurent Gbagbo, is currently undergoing trial for murder, rape, and “other inhumane acts” committed after the 2011 election.
The African Union’s proposition of withdrawal is non-binding. Member states are requested to consider strategies for withdrawal but are not bound to their vote. According to an anonymous informant, the AU is seeking to redefine “immunity” and “impunity” in the Rome Treaty, which established the court. Specifically, some leaders are seeking the exemption of sitting officials from the jurisdiction of the court. In addition, it encourages reform by the ICC to prosecute a more diverse array of criminals, an echo of South Africa, Burundi, and Gambia’s grounds for leaving the ICC in 2016. If all fifty-five African nations withdraw from the court, the ICC will lose nearly a third of its member states.
According to the ICC website, “International justice can contribute to long‐term peace, stability and equitable development in post‐conflict societies.” Thus, the withdrawal may damage this war-torn area of the world. Large-scale crimes in Africa may be ignored by national judicial systems, given that the ICC was founded to prosecute criminals national governments were unable or unwilling to pursue. Further, cases currently under investigation or mid-trial may not reach a conclusion and perpetrators may walk free. Such an event could reinforce the general impression that Africa is negligent of criminal cases. The AU had originally participated in the ICC to reverse this image. Although the AU’s accusations are grounded in history, the ICC filled an important role in advancing the continent.