On Friday, the African Union (AU) called an unusual meeting, set to take place on October 13th, to discuss a mass withdrawal from the International Criminal Court (ICC), a move that could threaten both recent efforts to punish the slaughter in Syria and broader progress towards creating a global system for prosecuting genocidaires and other war criminals.
Tension between African states and the ICC is nothing new. The ICC has so far indicted thirty people in total, all of whom were African. The African Union has been accusing the ICC of “chasing Africans” since 2008. The appointment of an ICC Prosecutor from the Gambia was thought to perhaps dampen some of those frayed ties, but so far to no avail.
Because the AU’s pullout threat is new — and serious. The flashpoint is the just-began ICC trial of Kenyan Vice President William Ruto, indicted for alleged involvement in the violence that swept Kenya after the 2007 election. Ruto and his boss, President Uhuru Kenyatta, are accused of being responsible for a series of brutal crimes against humanity during the strife. Kenyatta’s trial is set to commence after Ruto’s.
The Kenyatta-Ruto trials mark the first time either a sitting President or Vice President has ever been tried by the ICC. AU officials have argued that this unprecedented level of accountability is harming Kenya’s ability to participate as an equal state in world politics, charges the ICC has dismissed. Scheduling a meeting to discuss an en masse withdrawal is the AU’s latest escalation.
It’s also one that shouldn’t be taken lightly. “There’s no precedent that I know of for mass withdrawal like this,” David Bosco, a professor at American Univeristy who focuses on international institutions, told ThinkProgress. “It would be a really dramatic step. In many ways, it would put the whole ICC project into jeopardy.”
There’s a simple reason for that, Bosco says. “Not only are African states the largest region in the court, but every single investigation has been in Africa, and it’s likely that future cases would be in Africa.” Given the prevalence of civil conflict on the continent, including some deadly but low-profile wars, Africa is depressingly likely to be the most important continent for human rights prosecutions for the foreseeable future. States that withdraw could still be referred to the ICC by the U.N. Security Council, but that’s a much more cumbersome and political process than the standard mechanism for indicting states that are voluntarily under ICC jurisdiction.
The implications of a mass African pullout would likely reverberate globally, particularly at a time when 68 countries — including several African ones — are pushing to refer Syria to the ICC. An African pullout “would strengthen this argument that, in essence, the ICC and international justice is the imposition of certain norms on states that may not necessarily agree with them,” Bosco said.
Though the evidence on whether the ICC actually deters crimes against humanity, rather than simply punishes them, is mixed, there’s some reason to believe the court actually works. A recent paper found evidence that the threat of ICC prosecution successfully deterred would-be torturers from torturing. University of Minnesota Professor Katherine Sikkink’s research on human right prosecutions more broadly found statistical evidence that such prosecutions reduced the likelihood of such abuses recurring in the future.
All that being said, the mere fact that the AU is meeting to discuss a mass pullout from the ICC doesn’t make it inevitable or even necessarily likely. “I don’t think it’s at all a given that you’ll get large scale withdrawal,” Bosco said, in part because this meeting could simply be Kenyan maneuvering to protest the ICC trial. But the troubling consequences of a mass African pullout means that the meeting alone needs to be taken seriously.