The African Union’s Collective Withdrawal from the ICC: Does Bad Law make for Good Politics?

A number of news outlets reported last week that the African Union (AU) had adopted a strategy for collective withdrawal from the International Criminal Court (ICC) (see here, here and here). This follows withdrawals by three African states late last year, which in turn generated much debate at last November’s Assembly of States Parties and yet more calls for a re-assessment of the relationship between Africa and the Court. Although the prospect of collective withdrawal has been in the works for some time, what emerged from last week’s AU summit appears to be a politically benign and legally confused form of collective resistance. Despite the alarmist headlines, the withdrawal strategy may symbolize the high-water mark of AU opposition to the ICC.

Africa v. the ICC

The conflict between the ICC and the AU has been in the news for many years. It is hard to keep track of all the denunciations, threats and accusations that various African state representatives have leveled at the Hague-based court and yet, even by these standards, the year 2016 seemed to mark a nadir in the ICC-Africa relationship. In January, the AU requested the open-ended committee of Ministers of Foreign Affairs to develop ‘a comprehensive strategy’ for ‘collective withdrawal’, which would serve as guidance to African states wishing to re-assess their relationship to the ICC. After an inconclusive mid-year summit in Kigali in July 2016, where a few African states expressed doubts about withdrawal, the international justice community experienced something of a rude awakening when three states withdrew from the Rome Statute in quick succession. Burundi went first, followed by South Africa and the Gambia. While the precise trigger for their sudden departures in October 2016 remains a mystery, the taboo of treaty withdrawal had been shattered and a re-assessment of the ICC-Africa relationship acquired renewed urgency.

Withdrawal

Against this backdrop, the AU held its bi-annual summit in Addis Ababa from 22 to 31 January 2017. Like in previous years, international criminal justice received much attention, leading to another AU decision on the ICC (the final text is available here, despite the ‘draft’ heading). Unlike in previous years, the AU decision included the following paragraph: “Adopts the ICC withdrawal strategy along with its Annexes, and calls on member states to consider implementing its recommendations” (para. 8).

Not surprisingly, this provision produced a media frenzy, with several news agencies reporting (incorrectly) that the AU was bidding a final farewell to the ICC. A closer look at the actual text of the withdrawal strategy (the final text is available here, despite the ‘draft’ heading) tells a more nuanced story. In fact, it is clear from this document that it is the AU that has withdrawn, so to speak, from some of the more sweeping normative claims in favor of a ‘mass African exodus’ from the ICC. Instead of a collective action plan, the AU strategy repeatedly affirms that withdrawal is a ‘sovereign exercise’ that ‘has to be executed’ in accordance with the ‘constitutional provisions of individual African states’ (paras 8-10). In the most legally significant passage, the document cites the Vienna Convention on the Law of Treaties before concluding that “[t]he proposed AU withdrawal from the Rome Statute can be implemented on a state by state basis by using Article 127 of the Statute”.

This is followed by a detailed analysis of Article 127, its requirements and implications for African states, as well as a less known provision of the Rome Statute, Article 121 (6), which allows immediate withdrawal in case of an amendment to the ICC’s founding treaty. In a move that is sure to quell fears about possible AU obstructionism, the strategy document clarifies that withdrawing African states must abide by ‘the conditions for withdrawal’, in particular ‘ongoing obligations’ to cooperate with the ICC ‘in connection with ongoing criminal investigations and proceedings’ (para 17-18). This is welcome news given the ICC’s preliminary examination in Burundi, where the government’s unwillingness to cooperate with the Hague-based court remains a serious concern.

On the most contentious issue, that of collective withdrawal, the AU strategy is circumspect. Relying on Laurence Helfer’s work on treaty termination, the document notes some advantages of undertaking collective action as a means of exerting leverage over international institutions before conceding that “even where states have banded together to propose different legal alternatives to the dominant regimes, they have done so unilaterally…” (para. 20). On the key legal question, the AU strategy states merely that “[f]urther research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required in order to seek out additional guidance regarding the potential emergence of a new norm of customary international law.” (para. 21). The document then lays out what it calls the actual (withdrawal) strategy, consisting of political proposals (essentially lobbying a variety of international criminal justice actors) and legal proposals (amendments of the Rome Statute, Security Council reform, recruitment of African staff to the ICC, capacity building and ratification of the Malabo Protocol).

What is Collective Withdrawal?

While the AU strategy is nominally about collective withdrawal, the legal analysis of this concept seems oddly off topic. The AU seems to be pondering whether there is an (emerging) customary international rule that allows or prohibits collective withdrawal, yet it is hard to understand from the strategy what this actually means. If every African state that is also an ICC state party individually follows the AU’s call for withdrawal, pursuant to Article 127 of the Rome Statute, then what customary norm would allow or prevent African states to withdraw all at once? The Rome Statute expressly permits withdrawal, so customary international law and the Vienna Convention’s subsidiary rules on treaty termination are not of relevance if Article 127 of the Rome Statute is respected. As for the timing (coordinated or not) of withdrawal, this is a (purely political) question of collective action, on which customary international law has no bearing.

The legal question that the AU withdrawal strategy unavoidably prompts is whether the AU has the legal authority to obligate its member states to collectively leave the ICC. In other words, may the AU obligate member states to do something that is usually within their domaine réservé, such as acceding to or withdrawing from treaties? This question has obvious parallels with the AU’s repeated calls to ignore the ICC’s requests for arrest and surrender of Omar Al-Bashir, which has had significant legal and political consequences for a number of AU member states, including Chad, Malawi, the Democratic Republic of Congo, South Africa and Uganda. Importantly, however, there are also significant differences between the two issues, since in the Al-Bashir case the AU is calling on its member states to respect a pre-existing (so says the AU) customary international law norm on Head of state immunity. By contrast, in the case of collective withdrawal, the AU would be requiring states to take what appears to be an eminently political decision – treaty membership and, by extension, membership of an international organization.

Can an international organization oblige states to adhere to or, conversely, withdraw from a treaty/international organization? From a strictly legal perspective, this question is not without precedent, even if the political stakes and optics of leaving the ICC make this example exceptionally controversial. As is well known, the UN Security Council can require member states to take a wide range of measures relating to peace and security. The Security Council has adopted several Chapter VII resolutions requiring North Korea to return (‘retract withdrawal’) to the Treaty on Non-Proliferation of Nuclear Weapons (see e.g. UNSC Res 1718 (2006), para 3). The European Union also has wide-ranging powers over its member states, although – to the best of my knowledge – there is no precedent relating to compulsory treaty accession or withdrawal. The 2001 EU Common Position on the ICC stopped short of imposing a ratification obligation, and the EU’s Cotonou Agreement, which famously requires parties to “seek to take steps towards ratifying and implementing the Rome Statute and related instruments” (art. 11), applies to non-EU states.

So does this suggest that the AU may have legal authority to bind its member states to a decision requiring withdrawal from the Rome Statute? Put differently, may 2/3 of the AU Assembly, pursuant to Article 7 (1) of the AU Constitutive Act, decide that all African ICC states parties must withdraw? This post is not the place to resolve such a complex legal question, suffice it to say that the situation is unclear because the scope of AU authority and the status of its decisions are contested (for instance, the AU Constitutive Act does not contain a provision like Article 25 of the UN Charter, see here for some background, p. 11-15). In any case, if it exists, the AU’s power to mandate collective withdrawal would be anchored in, and require a detailed examination of, the law of international organizations, in particular the AU Constitutive Act, rather than customary international law as suggested by the AU strategy.

Law, Politics and Withdrawal

The AU withdrawal strategy is a strategic mix of law and politics, which will surprise no one studying the ICC vs. Africa debate, and especially the case against Omar Al-Bashir where the AU has made strategic use of legal arguments to reframe the political rhetoric surrounding ICC intervention on the continent. This probably explains why the AU chose to avoid the most contentious legal issue, focusing instead on mobilizing political action. In is withdrawal strategy, the AU even appears to concede that withdrawal is a bargaining chip that African states can deploy if other ‘outcomes’ are not achieved (para. 9, see also para. 19).

Whether this collective bargaining strategy will yield any political benefit is still unknown. Nigeria, Senegal, and Cape Verde entered formal reservations to the AU’s decision and Liberia entered a reservation to the paragraph that adopts the ICC withdrawal strategy. Four other states requested more time to study the strategy. This is hardly a show of disunity (it implies 47 other states either agree or do not openly disapprove), but it does suggest that organizing a mass African exodus from the ICC will not be without its challenges. With the Gambia announcing its intention to reverse its withdrawal from the ICC and Namibia declaring that it, in turn, would withdraw because it “supported the principled position of other African leaders for a collective withdrawal”, the most that can be said about this fast moving situation is that it will continue to absorb the international community’s attention.