[author: Darryl Jago]

On 30 January 2017 the African Union ("AU") voted in favour of the collective withdrawal by its member states from the International Criminal Court ("ICC"). This was a bold move considering a withdrawal of such magnitude could cripple the functioning and effectiveness of the ICC, according to political commentators.

The AU is the Africa's equivalent to the European Union and its member states comprise approximately thirty per cent of the one hundred and twenty three ICC members.

There is somewhat of a lacuna in respect of the details of the non-binding resolution adopted by the AU and one can only speculate as to the content thereof.  What is certain however is that the actual legal impact of the resolution is somewhat more benign than what appears on face value.

The resolution does not in itself prescribe that the AU member states must withdraw the ICC, it does however issue a species of ultimatum calling for the ICC to implement reforms and failing which the AU will attempt initiate a mass withdrawal of its member states.

But fear not, because since 2002 the AU has only implemented less than fifteen per cent of the approximately two thousand resolutions that it has passed since then.  In addition the final decision in respect of leaving the ICC is up to each member state and no AU resolution can give effect to the threatened mass exodus.

Reports suggest that the passing of the resolution was preceded by heated debate in an apparent indication that not all AU member states were in favour of the same.  According to an AU spokesperson, "the leaders of AU member states endorsed the strategy of collective withdrawal, with reservations".  What does "with reservations mean"?  Apparently, AU heavy-weights Nigeria and Senegal were vehemently opposed to the resolution, but were ultimately defeated by the majority who cited the ICC's perceived bias in targeting African states and African leaders as its overarching reason for its call to exit en masse. 

One may dismiss the AU's perspective as stereotypical political parlance advanced in the pursuant of a more sinister purpose - however the AU's views do not appear to be without some merit.

A quick review of the ICC's website reveals the fact that of the forty defendants that have been charged by the ICC - all are Africans.  In fact, since the ICC's inception, the ICC has only ever brought charges against Africans, notwithstanding calls to prosecute certain Eastern European leaders who have been accused of war crimes.

The numbers accordingly appear to justify the AU's sentiment towards the ICC. Although I am sure the ICC will have their own reasons for these results.

The question arises as to whether or not the passing of the non-binding resolution by the AU is cause for concern. The short answer is no.  The resolution is non-binding and no actual change has been effected.  The important takeaway from the conduct of the AU is that the AU has provided an indication as to its attitude towards the ICC and registered its concern in respect of its apparent subjectivity.

A withdrawal by the AU member states from the ICC will significantly undermine the goals that the global court aims to achieve. The ICC may find it difficult to continue with its mandate to investigate and, where warranted, try individuals charged with the gravest crimes of concern to the international community, including genocide, war crimes and crimes against humanity, if one third of its members decide to depart. This may be the time for such institutions to take a 360 view of not just its function but also its responsibility to convict the world's most unscrupulous criminals.