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The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?

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Abstract

Since 2009, there has been a serious antiparathesis between the African Union (AU) and the International Criminal Court (ICC), which, according to the AU, has principally concerned unjustified ICC prosecutions against African dignitaries. This has led certain African ICC parties to announce their withdrawal from it, while the AU adopted the so-called ‘ICC Withdrawal Strategy’ in January 2017. This article analyses the background to and the content of the antiparathesis, it examines the consequences of the African parties’ withdrawal from the ICC as regards the large-scale impunity in Africa, and it proposes the creation of ICC regional circuit chambers as a possible solution to realign relations between the AU and the ICC. Specifically, the proposal suggests the creation of several ICC regional circuit chambers, each being responsible for the alleged crimes committed in the territory of ICC parties belonging to a specific continent. Pertinent solutions to the institutional and practical issues arising from this proposal are offered.

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Notes

  1. Already in 2009 the AU Assembly expressed its deep concern at the ICC Prosecutor’s indictment against the Sudanese President al Bashir and asked the AU Commission to convene a meeting of the African ICC contracting parties to exchange views on the ICC’s work in relation to Africa, in ‘light of the processes initiated against African personalities’, AU Assembly, ‘Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of The Sudan’, Assembly/AU/Dec. 221(XII), 3 February 2009, paras. 1 and 5.

  2. Concluded 17 July 1998, entered into force 1 July 2002, 2187 UNTS 3. Art. 127(1) thereof provides for a right of denunciation subject to 1 year’s notice. Currently, 33 African states are contracting parties.

  3. AU Assembly, ‘Decision on the International Criminal Court (ICC)’, Assembly/AU/Dec. 622 (XXVIII), 31 January 2017, paras. 8 and 6, respectively. Generally, see Mutua (2017). The President of Kenya has referred to the ICC as a ‘tool for manipulation and neo-colonialism of African States’, see Latiff (2013).

  4. See n. 51 below and the corresponding text.

  5. See n. 41 below. Generally, see Naldi (2010).

  6. See ‘AU Reforms Report: Building A More Relevant African Union’, 15 January 2017, p. 17. The Report was the result of a review of the AU led by the Rwandan President P. Kagame, as mandated by the Assembly in July 2016. Further, see ‘The Imperative to Strengthen Our Union’, Report on the Proposed Recommendations for the Institutional Reform of the African Union by H.E. Paul Kagame, 29 January 2017, at p. 8 noting that the non-ratification of the Protocol establishing the ACJHR indicates a lack of commitment towards it.

  7. Namely, the Commission on the Implementation of the Decisions of the Assembly on the International Criminal Court (‘ICC’) and the Open-ended Committee of Ministers of Foreign Affairs on the International Criminal Court.

  8. To avoid repetition, see the bibliographic references below.

  9. See e.g. Miyandazi et al. (2016).

  10. See Falkowska and Verdebout (2012).

  11. For details, see https://www.icc-cpi.int/Pages/Situations.aspx.

  12. See Omorogbe (2017), pp. 46–47.

  13. Generally, see Magliveras (2017), pp. 295–296.

  14. Assembly/AU/Dec. 622(XXVIII), n. 3 above, para. 2.

  15. See ‘Sudan will prosecute Bashir but won’t hand him over, military says’, CNN, 13 April 2019, at https://edition.cnn.com/2019/04/12/africa/sudan-army-bashir-intl/index.html. Note that in June 2019 the participation of Sudan in all AU activities was suspended until the effective establishment of a Transitional Authority to be led solely by civilians, see AU Peace and Security Council, 854th Meeting, Communiqué, AU Doc. PSC/PR/COMM.(DCCCXLIV), 6 June 2019, para. 12.

  16. On Colonel Gaddafi’s standing in Africa, see Huliaras and Magliveras (2011).

  17. See UN Human Rights Council, ‘Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya’, UN Doc. A/HRC/17/44, 9 June 2011; UN Human Rights Council, ‘Report of the International Commission of Inquiry on Libya’, UN Doc. A/HRC/19/68, 28 January 2014; UN General Assembly, ‘Investigation by the Office of the United Nations High Commissioner for Human Rights on Libya, Report of the Office of the United Nations High Commissioner for Human Rights’, UN Doc. A/HRC/31/47, 15 February 2016; and UN Human Rights Council, ‘Situation of human rights in Libya, and the effectiveness of technical assistance and capacity-building measures received by the Government of Libya, Report of the United Nations High Commissioner for Human Rights’, UN Doc. A/HRC/37/46, 21 February 2018.

  18. AU Assembly, ‘Decision on the Report of the Peace and Security Council on its Activities and the State of Peace and Security in Africa’, Assembly/AU/Dec. 695(XXXI), 2 July 2018, para. 18.

  19. AU Assembly, ‘Decision on the Report of the Commission on the Meeting of African States Parties to the ICC Statute of the International Criminal Court (ICC)’, Assembly/AU/Dec. 245(XIII), 3 July 2009, para. 12. Note that the League of Arab States (LAS) also rejected the Arrest Warrants against Al-Bashir, see Arab League Council, ‘Doha Summit Statement Regarding Solidarity with the Republic of Sudan in rejecting the decision of the First Pre-Trial Chamber of the International Criminal Court against the Sudanese President Omar Hassan Ahmed Al-Bashir’, Doha, 30–31 March 2009, at http://www.iccnow.org/documents/Arab_League_Summit_2009_-_SummaryFV.pdf. However, LAS never became as preoccupied with the ICC as the AU.

  20. Generally, see the contributions in Part I of Steinberg (2016).

  21. Pre-Trial Chamber III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, 12 April 2019. While P-T C III held that ‘An investigation can hardly be said to be in the interests of justice if the relevant circumstances are such as to make such investigation not feasible and inevitably doomed to failure’, ibid., para. 90, arguably it did not answer the question of what would be the consequence when those, who have allegedly perpetrated the crimes under preliminary investigation, deliberately destroy or suppress facts, evidence and information.

  22. Cf. Art. 4(o) of the AU Constitutive Act, adopted 11 July 2000, entered into force 26 May 2001, 2158 UNTS 3, stipulating that the rejection of impunity is one of the Organisation’s principles.

  23. E.g. Assembly/AU/Dec. 622(XXVIII), n. 3 above, para. 2.

  24. Generally, see Magliveras (2016a, b).

  25. E.g. the unfortunate handling of the situation in Kenya, an ICC party since March 2005, gave credence to the AU requests for the immediate termination of proceedings against the Kenyan President and Deputy President; see, inter alia, AU Assembly, ‘Decision on the Progress Report of the Commission on the Implementation of the Decisions on the International Criminal Court’, Assembly/AU/Dec. 493(XXII), 31 January 2014; Assembly, ‘Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court (ICC)’, Assembly/AU/Dec. 547(XXIV), 31 January 2015; and Assembly, ‘Decision on the International Criminal Court’, Assembly/AU/Dec. 590(XXVI), 31 January 2016. The ICC Prosecutor withdrew the charges due to insufficient evidence, see Magliveras and Naldi (2017), pp. 131–133.

  26. That on this matter the Assembly resolutions paint a picture of overall agreement among the membership could very well be a fallacy, see Mills (2012).

  27. E.g. AU Assembly, ‘Decision on the International Criminal Court’, Assembly/AU/Dec. 616(XXVII), 18 July 2016, para. 5(iii)(b), to which four members attached reservations. See further, Keppler (2012).

  28. For an overview, see Lansky (2016).

  29. For the statements made by African contracting parties during the ASP General Debate on 16–17 November 2016, see https://asp.icc-cpi.int/EN_Menus/asp/sessions/general%20debate/pages/generaldebate_15th_session.aspx. See further, Keppler (2016).

  30. They are named in fn. 1 of Assembly/AU/Dec. 622(XXVIII), n. 3 above.

  31. See Withdrawal Strategy Document, Draft 2, Version 12.01.2017, at https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. See also, ‘AU collective withdrawal plan from ICC suffer setback’, The Guardian (Nigeria), 27 January 2017, at http://guardian.ng/news/au-collective-withdrawal-plan-from-icc-suffer-setback/.

  32. See ‘Africa: Nigeria Opposes Mass ICC Withdrawal’, allAfrica, 27 January 2017, at http://allafrica.com/stories/201701270605.html; and ‘Nigeria: Again, Nigeria Pledges to Remain in ICC’, allAfrica, 2 February 2017, at http://allafrica.com/stories/201702020376.html.

  33. See Kuwonu (2017).

  34. See Köchler (2017), p. 9.

  35. E.g. AU Assembly, ‘Decision on the Common African Position on the Post-2015 Development Agenda’, Assembly/AU/Dec. 503(XXII), 31 January 2014; and AU Executive Council, ‘The Common African Position on the Proposed Reform of the United Nations: the Elzulwini Consensus’, Ext/EX.CL/2 (VII), 8 March 2005.

  36. AU Assembly, ‘Decision on the Progress Report of the Commission on the Implementation of the Decisions on the International Criminal Court’, Assembly/AU/Dec. 493(XXII), 31 January 2014, para. 12(ii).

  37. AU Assembly, ‘Decision on the International Criminal Court’, Assembly/AU/Dec. 738(XXXII), 11 February 2019, para. 7.

  38. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber II, Decision under article 87(7) of the Rome Statute on the noncompliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir, ICC-02/05-01/09-309, 11 December 2017.

  39. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Appeals Chamber, Judgment in the Jordan Referral re Al-Bashir Appeal, No. ICC-02/05-01/09 OA2, 6 May 2019.

  40. Established under the Protocol on the African Court of Justice, adopted 11 July 2003, entered into force 11 February 2009. It still attracts ratifications [Burkina Faso on 19 December 2016, Liberia on 23 February 2014 (it deposited the instrument of ratification on 7 March 2017)]. For an analysis, see Magliveras and Naldi (2006).

  41. Adopted 1 July 2008, (2009) 48 ILM 337. Currently, seven out of the 15 required ratifications have been secured, while 32 member states have signed it. For an analysis, see Naldi and Magliveras (2012), p. 387.

  42. See Ssenyonjo (2017).

  43. E.g. in protest against the ICC prosecuting the Kenyan President and Deputy President, n. 25 above, the National Assembly passed a motion of withdrawal, which was never acted upon, see Gatehouse (2013).

  44. Assembly/AU/Dec. 622 (XXVIII), n. 3 above, para. 6.

  45. In October 2013, the Assembly was convened in extraordinary session to discuss principally an anti-ICC strategy. Calls for an impending mass ICC withdrawal failed to materialize, but it was decided, arguably without a proper legal basis, that ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office’: AU Assembly, ‘Decision on Africa’s Relationship with the International Criminal Court (ICC)’, Ext/Assembly/AU/Dec. 1, 12 October 2013, para. 10(i). See Chigara and Nwankwo (2015), pp. 245–246.

  46. Generally, see Sipalla (2017).

  47. C.N.862.2016.TREATIES-XVIII.10 (Depositary Notification).

  48. See ‘Gambia elections: President-elect Adama Barrow's life story’, BBC News, 19 January 2017, at http://www.bbc.com/news/world-africa-38185428.

  49. On the reasons leading to the attempted withdrawal, see nn. 75–78 below and the corresponding text.

  50. The Instrument of Withdrawal was delivered to the UN Secretary-General on 19 October 2016, Note No. 568/2016, C.N.786.2016.TREATIES-XVIII.10 (Depositary Notification).

  51. South African High Court at Pretoria—Gauteng Division, Democratic Alliance v. Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening), Case no. 83145/2016, Order, 22 February 2017, [2017] ZAGPPHC 53. While the withdrawal was notified on 19 October 2016, ibid., the legislative instrument to repeal the Implementation of the Rome Statute of the International Criminal Court Act (Act 27 of 2002), namely the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill (B23-2016), was tabled before the National Assembly much later, on 3 November 2016.

  52. C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification).

  53. See ‘Rome Statute repeal bill withdrawn from Parliament’, news24, 14 March 2017, at http://www.news24.com/SouthAfrica/News/rome-statute-repeal-bill-withdrawn-from-parliament-20170314.

  54. Generally, see Woolaver (2011).

  55. C.N.805.2016.TREATIES-XVIII.10 (Depositary Notification).

  56. Pre-Trial Chamber III, Public Redacted Version of ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 25 October 2017.

  57. Generally, see Imoedemke (2015), Warioba (2001), p. 44.

  58. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, signed 27 June 2014, not yet in force; it contains the revised ACJHR Statute to take cognizance of the ICL Section. For an analysis, see Naldi and Magliveras (2015).

  59. Adama Dieng, UN Special Adviser on the Prevention of Genocide, has also said that much, see Dieng (2017).

  60. Application No. 004/2011, African Commission on Human and Peoples’ Rights v. Great Socialist People's Libyan Arab Jamahiriya, Order for Provisional Measures, 25 March 2011.

  61. See Maunganidze and du Plessis (2015), p. 82.

  62. Application No. 004/2011, Order, 15 March 2013.

  63. Adopted 1 June 1981, entered into force 21 October 1986, 1520 UNTS 217. Except for Morocco, which acceded to the AU in January 2017, all other member states have ratified it.

  64. Application No. 002/2013, African Commission on Human and People’s Rights v. Libya, Order of Provisional Measures, 15 March 2013.

  65. Reportedly, the Tripoli Court of Appeal has sentenced him to death by firing squad, together with another eight persons, for crimes perpetrated during the February 2011 uprising, see United Nations Support Mission in Libya / Office of the United Nations High Commissioner for Human Rights, ‘Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012)’, 21 February 2017, at https://www.ohchr.org/Documents/Countries/LY/Trial37FormerMembersQadhafiRegime_EN.pdf.

  66. See Magliveras (2016a, b).

  67. Application No. 002/2013, Judgment, 3 June 2016. Note that in a Separate Opinion, filed on the same day, Judge Fatsah Ouguergouz argued that the Court should have undertaken a far more meticulous evaluation of the evidence adduced by the Commission.

  68. ICC, Pre-Trial Chamber I, Decision on the ‘Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi’, ICC-01/11-01/11, 27 June 2011.

  69. Pre-Trial Chamber I, Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577, 10 December 2014, concluded that the Libyan government had not complied with this obligation. The Decision was notified to the UN Security Council in March 2015, see Pre-Trial Chamber I, Registrar’s Report on the referral to the United Nations Security Council and the notification of the Decision on the non-compliance by Libya with requests for cooperation, ICC-01/11-01/11-587, 19 March 2015, but apparently no action was taken.

  70. ICC Prosecutor, ‘Sixteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1970 (2011)’, 2 November 2018, para. 13; ICC Prosecutor, ‘Seventeenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UNSCR 1970 (2011)’, 8 May 2019, para. 19.

  71. As regards the various crimes and abuses perpetrated in Libya, the following three judicial entities could exercise jurisdiction: the domestic courts, the ICC, and the Human Rights Court. While the principle of complementarity presumably applies between the former two, the relationship between the latter two is unclear (indeed the Human Rights Court is not a criminal court and may not try individuals but only states).

  72. The UN Security Council referred the situation in Libya to the ICC pursuant to Resolution 1970(2011) of 26 February 2011.

  73. See the Commission’s mandate as laid down in Art. 45 of the African Charter.

  74. See Arts. 5 and 34(6) of the Protocol establishing the African Court of Human and Peoples’ Rights.

  75. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber II, Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir, ICC-02/05-01/09, 13 June 2015.

  76. According to her, the so-called ‘arrest the president’ movement distracted African leaders from discussing the important issues affecting the continent, see Escritt (2015).

  77. High Court of Pretoria—Gauteng Division, Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development & others, Case No. 27740/2015, Order, 15 June 2015. An Order by the same Court rendered the previous day had prohibited Al-Bashir’s departure from the country, ibid., para. 36. A final judgment was given on 24 June 2015, [2015] ZAGPPHC 402; 2015 (5) SA 1 (GP).

  78. Supreme Court of Appeal of South Africa, Minister of Justice and Constitutional Development v. Southern African Litigation Centre (867/15), Judgment, 15 March 2016, [2016] ZASCA 17: it found the government’s conduct, namely the failure to take steps to arrest and/or detain Al Bashir, to be inconsistent with ICC obligations and the domestic legislation implementing the Rome Statute. These events triggered the government’s unsuccessful attempt to have South Africa withdraw from the ICC, n. 49 above.

  79. The ICC has confirmed that South Africa failed to comply with its obligations, see Pre-Trial Chamber II, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, ICC-02/05-01/09-302, 6 July 2017.

  80. It stipulates that, should a member state disrespect AU decisions and policies, it may be subjected, on the one hand, to the sanctions under Art. 23(1) thereof, namely a denial of the right to speak at meetings, to vote, and to present candidates for positions within the Organisation, and, on the other hand, to additional political and economic punitive measures to be determined by the Assembly. For an analysis, see Magliveras and Naldi (2018), pp. 122–127.

  81. Assembly/AU/Dec. 590(XXVI), n. 25 above, paras. 3 and 4.

  82. High Court of Kenya at Nairobi, The Kenya Section of International Commission of Jurists v. The Attorney General et al, Miscellaneous Criminal Application 685 of 2010, Ruling, 28 November 2011, at http://kenyalaw.org/caselaw/cases/view/77625/. For a discussion, see Kasaija (2012).

  83. See further, ICC, The Prosecutor v. Omar Hassan Ahmed Al Bashir, Pre-Trial Chamber II, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al Bashir’s Presence in the Republic of Kenya, ICC-02/05-01/09, 27 August 2010.

  84. Assembly/AU/Dec. 245(XIII), n. 19 above, para. 10.

  85. Kenyan Court of Appeal, Civil Appeal No. 105 of 2012 Consolidated with Criminal Appeal No. 274 of 2011, The Attorney General et al v. The Kenya Section of International Commission of Jurists, Judgment, 16 February 2018, at http://kenyalaw.org/caselaw/cases/view/148746/. The government also invoked national interests to defend is inaction, namely that it would not execute the arrest warrants as it could jeopardise the friendly relationship with Sudan and threaten the lives and property of Kenyans living in Sudan.

  86. Note that by describing the ASP as a ‘political body’ it is not disputed that it also possesses legislative functions but the emphasis here is on the predominant role that politics play therein.

  87. For similar ideas advanced by other commentators, see Magliveras (2017), p. 310.

  88. It is true that international judicial organs are unitary but arguably there are no compelling reasons for this: for example, the Court of Justice of the European Union or the European Court of Human Rights could for reasons of, inter alia, expediency operate under a sub-regional structure.

  89. This submission is not concerned with the possibility of having the judicial organs of the African Regional Economic Communities (RECs) undertake criminal proceedings under deferral by the ICC, on which see Sainati (2016). Arguably, it would be wrong to convolute their mandate by having them assume jurisdiction for which they are not well suited. The idea of ‘one size fits all’ is not appropriate here.

  90. Equally, if the UN Security Council were to refer situations under Art. 13b of the Rome Statute, they would be carried on to the relevant regional circuit chamber.

  91. Cf. Art. 34 of the Rome Statute. A separate Registry does not appear to be necessary but the relevant functions could be done centrally.

  92. Under Art. 36(2)(b), ibid., this would have to be approved by a two-thirds majority in the ASP, while the relevant decision would have immediate effect.

  93. ASP, Fourteenth Session, ‘Report of the Working Group on Amendments’, ICC-ASP/14/34, 16 November 2015, para. 18.

  94. ASP, Fifteenth Session, ‘Report of the Working Group on Amendments’, ICC-ASP/15/24, 8 November 2016, para. 20; ASP, Sixteenth Session, ‘Report of the Working Group on Amendments’, ICC-ASP/16/22, 15 November 2017, para. 26; and ASP, Seventeenth Session, ‘Report of the Working Group on Amendments’, ICC-ASP/17/35, 29 November 2018, para. 16.

  95. See the Preamble to the Rome Statute and Art. 17 thereof.

  96. See Art. 46H of the ACJHR Statute.

  97. Ibid., Art. 28A. For the constitutive elements of these crimes, see ibid., Arts. 28B et seq.

  98. See, respectively, Arts. 13a and 14 of the Rome Statute and Art. 46F(1) of the ACJHR Statute.

  99. See, respectively, Arts. 13c and 15 of the Rome Statute and Arts. 46F(3) and 46G of the ACJHR Statute.

  100. On an authorization to investigate, see Art. 15(3)–(4) of the Rome Statute and Art. 46G of the ACJHR Statute. .

  101. See Art. 46(1)(C) of the American Convention on Human Rights, adopted 22 November 1969, entered into force 18 July 1978, 1144 UNTS 143.

  102. See Art. 22(5)(a) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, entered into force 26 June 1987, 1465 UNTS 112.

  103. See Art. 5(2)(a) of the (First) Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171.

  104. See Art. 35(2)(b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, entered into force 3 September 1953, 213 UNTS 221, as currently in force.

  105. Cf. Allen (2007).

  106. Note that this submission does not argue that the ICC should defer to alternative regional methods of criminal justice, on which see Keller (2008), pp. 15 et seq.; the criminal justice system created by the ICC is to be maintained.

  107. E.g. on 12 December 2017, the South African government introduced to the National Assembly the International Crimes Bill (B37-2017), at https://pmg.org.za/bill/751/, which envisaged, inter alia, the repeal of the Implementation of the Rome Statute of the International Criminal Court Act 2002, see also n. 51 above. On 7 May 2019, the Bill lapsed.

  108. In the case of the Philippines, the withdrawal announcement on 14 March 2018, C.N.138.2018.TREATIES-XVIII.10 (Depositary Notification), appears to have been prompted by the ICC Prosecutor opening a preliminary examination against President Rodrigo Duterte the previous month, at https://www.icc-cpi.int/Pages/item.aspx?name=180208-otp-stat. The legality of the withdrawal was challenged by opposition senators before the Supreme Court: Senator Francis Pangilinan et al. vs. Alan Peter Cayetano et al. & PCICC et al. vs. Salvador Madialdea et al. However, it did not rule on the challenge before the withdrawal took effect (17 March 2019, C.N.138.2018.TREATIES-XVIII.10 (Depositary Notification)). The preliminary examination is ongoing.

  109. Malaysia submitted its instrument of accession on 4 March 2019. A month later the government decided to withdraw the instrument of accession. Even though this did not constitute a formal withdrawal from the Rome Statute (it would have become a contracting party only on 1 June 2019), the practical effects are the same, i.e. Malaysia does not participate in the ICC.

  110. See above nn. 30–31 and the corresponding text.

  111. See the ratification tables of AU treaties at https://au.int/en/treaties.

  112. See e.g. Chinedu Olugbuo (2014), p. 363, suggesting an ICC-AU relationship agreement following the pattern of the Agreement between the ICC and the European Union on Cooperation and Assistance, signed 10 April 2006, in force 1 May 2006, [2006] OJ L 115/50.

  113. See Mbengue and McClellan (2017).

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Acknowledgements

The author would like to thank the Modern Law Review for its award of funding for ‘The Crisis of International Criminal Law in Africa’ conference. A draft of this article was delivered at that conference which was held at the Universities of Johannesburg and Leicester on 7 November 2017.

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  1. Department of Mediterranean Studies, University of the Aegean, Rhodes, Greece

    Konstantinos D. Magliveras

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Magliveras, K.D. The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?. Neth Int Law Rev 66, 419–439 (2019). https://doi.org/10.1007/s40802-019-00145-3

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