African States Not Quitting ICC, Just Undermining From Within

[This is en excerpt from an op-ed/short essay I’ve written on the AU action, which is available for publication…]
African Union leaders met in an extraordinary summit in Adas Ababa last week to discuss their strained relations with the International Criminal Court (ICC), as it begins trying its first sitting head of state, President Uhuru Kenyatta of Kenya. Supporters of the Court breathed a sigh of relief when the event ended, as I had predicted, without a much-anticipated African countries quitting the ICC en masse in protest of its Africa-focussed docket.

However, while less dramatic than a group defection from the ICC, the policies adopted by the special synod represent perhaps as profound a repudiation of The Hague-based Court. The African action exposes the weaknesses of the Court while further politicizing it.

The AU proclaimed that “no charges shall be commenced or continued before any international court… against any serving Head of State.” Their demand for immunity for leaders has one problem: it directly contradicts the Rome Statute, the treaty the serves as the ICC’s charter. Art. 27 provides a defendant’s leadership position is entirely “irrelevant,” and it notes this applies to heads of state “in particular.” Indeed, “ending impunity” for national leaders is the maxim of the Court. The AU leaders’ demand is not absurd – as they note, customary international law has traditionally provided head-of-state immunity. But the ICC is supposed to represent progress beyond such parochial and self-serving norms.

In short, the AU has endorsed violating the Court’s constitution while not quitting it. For the integrity of international law, this might be worse. When the United States quit the jurisdiction of the International Court of Justice, and when President Bush “unsigned” the Rome Statute, diplomats and international lawyers pointed out that this proves how seriously international law is taken: even those opposed to the institutions exit them in the manner prescribed by treaty.

The AU states did not quit because a mass exodus would involve significant coordination problems, and perhaps because they feared formalities would result in a loss of foreign aid. Moreover, why bother with the hassle of exit when the can, en bloc, simply repudiate the objectionable aspects of the treaty. The Court had always preferred to trade depth of commitment for breadth of membership. Thus its Charter forbids reservations to the treaty, though those would have allowed most states to sign, like Saudi Arabia signing the women’s rights convention.

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