State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia

In 2016 three African states namely South Africa, Burundi and The Gambia submitted written notifications of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) to the Secretary-General of the United Nations pursuant to Article 127 of the Rome Statute. Although the African Union welcomed and fully supported the three withdrawal notifications and considered them as ‘pioneer implementers’ of its ‘Withdrawal Strategy’, The Gambia and South Africa withdrew their notifications of withdrawal. Some other states – Kenya, Namibia and Uganda – have made threats to submit withdrawal notifications. This article examines four issues arising out of the said withdrawal notifications. First, why did the three states submit withdrawal notifications from the Rome Statute? Second, what is the impact of the three states’ withdrawal notifications? Third, is the African Court on Human and Peoples’ Rights (or the yet-to-be-established African Court of Justice and Human and Peoples’ Rights) a suitable African regional ‘alternative’ to the ICC? Finally, what steps might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute?


I INTRODUCTION
In recent years the growing discontent with the perceived unequal application of the Rome Statute of the International Criminal Court (Rome Statute), 1 the founding treaty of the International Criminal Court (ICC), particularly among some African leaders, culminated in 3 state withdrawal notifications out of 124 state parties. 2 In October and November 2016, three African Union (AU) member state parties to the Rome Statute -The Republic of South Africa (South Africa), 3 the Republic of Burundi (Burundi) 4 and The Republic of The Gambia (The Gambia) 5 -submitted their written notifications of withdrawal from the Rome Statute to the United Nations (UN) Secretary General. 6 This was done in accordance with Article 127(1) of the Rome Statute, which provides that a state party to the Rome Statute may withdraw from the Statute Ôby written notification addressed to the Secretary-General of the United Nations'. 7 The notifications of withdrawals were welcomed and supported by the African Union (AU) as part of the AU's ÔWithdrawal Strategy' from the Rome Statute. 8 However, both The Gambia and South Africa withdrew their notifications of withdrawal before they became effective. At present, this signals their renewed commitment to the Rome Statute. Unless Burundi also withdraws its notification of withdrawal at any time before it becomes effective, its withdrawal shall take effect one year after the date of receipt by the UN Secre- tary-General. 9 This will make Burundi the first state party to the Rome Statute in the world to withdraw from the Rome Statute, 15 years since the Statute entered into force.
South Africa, one of the first signatories to the Rome Statute, 10 ratified the Rome Statute on 27 November 2000 after first obtaining parliamentary approval. 11 In order to ensure the effective implementation of the Rome Statute in South Africa, in accordance with the South African Constitution, a domestic statute was enacted through the Implementation of the Rome Statute of the International Criminal Court 2002. 12 This made South Africa the first African state to domesticate the Rome Statute. On 19 October 2016, the government of South Africa Minister of International Relations and Cooperation, acting for the executive and without seeking or receiving prior approval of the South African parliament or any public consultation, 13 unilaterally submitted to the UN Secretary General a notification of South Africa's withdrawal from the Rome Statute. 14 This was followed by a Parliamentary Bill to repeal the Implementation of the Rome Statute in South Africa. 15 9 Rome Statute, Art 127(1). Unless Burundi's withdrawal notification is withdrawn, it shall take effect on 27 October 2017. 10 South Africa signed the Rome Statute on 17 July 1998 (the date it was first opened for signature). 11 Constitution of the Republic of South Africa 1996, Section 231(2), provides that an Ôinternational agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces'; Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6, para 89 Ngcobo CJ. 12 Act 27 of 2002, adopted by Parliament in 2002, http://www.gov.za/sites/www. gov.za/files/a27-02.pdf; Glenister (n 11), para 95; National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and An other (CCT 02/14), [2014] ZACC 30; Constitution of the Republic of South Africa 1996, Section 231(4): ÔAny international agreement becomes law in the Republic when it is enacted into law by national legislation…'. 13 Constitution of the Republic of South Africa 1996, Section 231(2) (n 10). By implication even withdrawal notification from an international agreement like the Rome Statute must follow the procedure in Section 231(2) -it must be submitted Ôafter it has been approved by resolution in both the National Assembly and the National Council of Provinces'. 14  Although South Africa's withdrawal notification was revoked on 7 March 2017 in order to adhere to a High Court judgment, 16 it is still useful to understand events leading to South Africa's notification of withdrawal, which came after three significant recent developments. First, in June 2015, the High Court of South Africa, Gauteng Division, Pretoria, ordered the South African government to prohibit the President of the Republic of Sudan, Omar Hassan Ahmad Al Bashir (Al Bashir), who is subject to two ICC arrest warrants, 17 from leaving South Africa, which the South African government ignored. 18 The Supreme Court of Appeal of South Africa found that South Africa's failure to take steps to arrest and detain, for surrender to the ICC, Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th AU Assembly, was inconsistent with South Africa's obligations under the Rome Statute. 19 The ICC Pre-Trial Chamber II had earlier made it clear that ICC State parties including South Africa are under an obligation to arrest and surrender Al Bashir to the ICC. 20 Second, the AU (which has more than a third of member states as non-parties to the Rome Statute), 21 had made several decisions calling upon African States not to cooperate with the ICC 22 and urged its member states to consider Ôcollective withdrawal from the ICC'. 23 Third, South Africa's withdrawal notification came after the withdrawal process initiated by Burundi 24 and later supported by The Gambia. 25 This article examines key issues in connection with the three withdrawal state notifications. Section II examines reasons for withdrawal notifications. It considers why did the three states submit notifications of withdrawal from the Rome? Section III analyses the likely consequences of the 3 withdrawal notifications from the Rome Statute. Section IV considers whether the African Court on Human and Peoples' Rights (or the future African Court of Justice and Human and Peoples' Rights) is a suitable African regional alternative or complementary to the ICC. Section V makes concluding observations. It comments on whether the three withdrawing states should consider withdrawing the withdrawal notifications and outlines measures that might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute. 21 34 out of 54 AU member states (62 per cent) were parties to the Rome Statute in December 2016, making African states the largest block of state parties to the Rome Statute. 22 See e.g. the following AU decisions on the ICC: Assembly/AU/Dec.245(XIII), 3 July 2009, para 10; Assembly/AU/Dec.296(XV), 27 July 2010, para 5; Assembly/AU/ Dec.397(XVIII), 30 January 2012, paras 6 and 8. 23 See Decision on the International Criminal Court -Doc. EX.CL/952(XXVIII), AU Assembly/AU/Dec 590 (XXVI) 30-31 January 2016, para 10(iv). 24

II REASONS FOR WITHDRAWAL NOTIFICATIONS FROM THE ROME STATUTE
Article 127 of the Rome Statute which applies to withdrawals from the Statute does not require states to provide any reason for withdrawing. It follows, therefore, that a state party to the Rome Statute may submit a withdrawal notice from the Statute at any time, in accordance with Article 127, without giving any reason, Ôgood or Ôbad'. 26 While withdrawal notifications of Burundi and The Gambia did not state any specific reason(s) for withdrawing, it is possible to infer some reasons from the prevailing circumstances in both states before withdrawal notifications were submitted. South Africa decided to give reasons for its withdrawal. 27 An analysis of the reasons advanced by South Africa is helpful in understanding why it took this step and what needs to be done to avoid further possible withdrawal notifications in the future by any other state sharing the same views as South Africa. In what follows, an analysis is made of the reasons that principally motivated the three withdrawal notifications.

Avoiding Accountability before the ICC for Possible International Crimes
Both withdrawal notifications of Burundi and The Gambia were intended to ensure that state officials including sitting heads of state -President Pierre Nkurunziza of Burundi since 2005 and President Yahya Jammeh of The Gambia from 1994 to 19 January 2017escape possible criminal investigations and prosecutions before the ICC. Burundi experienced violence before and after legislative and presidential elections since April 2015 including a failed coup de tat in May 2015. The government responded by carrying out several operations leading to gross violations of human rights possibly amounting to crimes against humanity of Ôkilling, other inhumane acts, imprisonment, torture, rape and other sexual violence, as well as cases of enforced disappearances and acts of persecution'. 28 29 The Commission added that these violations were widespread, Ôsystematic and patterned and impunity [was] pervasive'. 30 The Commission expressed the view that some of the violations could amount to crimes against humanity and that Ôindependent international processes determine accountability for possible international crimes'. 31 Following these findings, the UN Human Rights Council decided, on 30 September 2016, to create for a period of one year a commission of inquiry into human rights abuses in Burundi since April 2015 that would identify alleged perpetrators of human rights violations in Burundi with a view to ensuring full accountability. 32 Burundi's head of state and other state officials did not want the Prosecutor to proceed with the preliminary examination because they would be possibly identified among the alleged perpetrators. At the time Ômore than 430 persons had reportedly been killed, at least 3,400 people arrested and over 230,000 Burundians forced to seek refuge in neighbouring countries'. 33 The preliminary examination focussed on acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances that have been allegedly committed since April 2015 in Burundi. 34  based in Banjul, The Gambia. 41 Its withdrawal notification was a clear manifestation of its unwillingness to be subjected to a possible ICC investigation.
Nevertheless, it might still be possible to investigate the situation in The Gambia since President Jammeh lost an election in December 2016 to Adama Barrow. 42 Since Jammeh was forced to carry out Ôa peaceful and orderly transition process, and to transfer power to President-elect Adama Barrow' in January 2017 in accordance with the Gambian Constitution, 43 Barrow indicated that he would withdraw the notification to withdrawal The Gambia from the Rome Statute since Ôthere is no need for us [The Gambia] to leave the ICC'. 44 Given that the withdrawal notification was an executive decision made without prior parliamentary approval or any public consultation, it can be withdrawn by an executive act at any time before it becomes effective.
Since  45 It also confirmed that ÔThe Gambia still considers itself as a state party and will continue to honour its obligations under the Rome Statute'. 46 The rescission of The Gambia's notification of withdrawal was historicthe first time a state has taken such a step. It offered some hope that the new Gambian government might help pave the way to accountability in the future. The rescission of the withdrawal notification means that it is still possible for the ICC to investigate the situation in The Gambia. under Chapter VII of the UN Charter, 49 has power to give the ICC jurisdiction by referring a Ôsituation' to the ICC Prosecutor in which one or more crimes within the ICC jurisdiction appear to have been committed. 50 The Security Council can trigger proceedings over the crime of aggression. 51 The referral practice of the Council has been characterised by double standards, lack of consistence and coherence as well as inaction or lack of effective support after referral. The ICC as an independent permanent international organisation is entirely autonomous from, but has an important relationship with, the UN. 52 Since the ICC does not participate in the Security Council's decisionmaking, it is not responsible for the Council's practice.
However, its credibility as a judicial body has certainly been affected by the Council's practice. The Council has to date referred two situations to the Prosecutor, exclusively in Africa -Darfur (Sudan) 53 and Libya, 54 which does not reflect the aspiration to the universal vocation of the Court. In both situations, the Council required that Sudan and Libya Ôcooperate fully' and Ôprovide any necessary assistance to the Court'. 55  Similarly, it did not provide political support to the ICC or take any other follow-up actions to ensure that ICC arrest warrants are executed by both state parties and non-state parties, 58 leaving the Prosecutor unable to prosecute cases from Sudan 59 and to obtain custody of Saif Al-Islam Gaddafi from Libya. 60 In fact, five suspects who are members of the Government of the Republic of Sudan or its aligned militias remain at large in Sudan, many years after arrest warrants were issued against them. 61 Two warrants for the arrest of Omar Al-Bashir subsequently issued by Pre-Trial Chamber I (the first on 4 March 2009 for a number of war crimes and crimes against humanity 62 and the second on 12 July 2010 for the crime of genocide) 63 have not been executed. Instead Al Bashir has been able to travel across several international borders without arrest and surrender to the Court, thereby openly undermining Resolution 1593 and the credibility of the Council as well as the Court.
It is well known that Africa is seriously underrepresented on the UN Security Council, which is steered primarily by great powers who are permanent members namely China, France, Russia, the United Kingdom (UK) and the United States (US). According the South African government: ÔQuestions on the credibility of the ICC will persist so long as three of the five permanent members of the Security  64 This is primarily due to their status as non-state parties and veto power. South Africa's view suggests that the Security Council, which is still stuck in the post Second World War hegemony, has referred African situations to the ICC but ignored similar or worse situations elsewhere e.g. Afghanistan, Iraq, North Korea, Palestine, Sri Lanka, Syrian Arab Republic (Syria), Ukraine, and the US with respect to methods used in interrogations and detention since 9/11. Situations involving interests of some major political and economic states which are permanent members of the UN Security Council or their allies would never be referred to the ICC. For example, the situation in Afghanistan did not attract a UN Security Council referral despite the existence of Ôa reasonable basis to believe' that crimes were committed in 2003-2004 (continuing in some cases until 2014) within the Court's jurisdiction, in particular Ôwar crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secrete detention facilities operated by the Central Intelligence Agency'. 65 The US would use its veto power against such a referral investigating crimes committed by US military officials.
In due to Ôprevailing geo-strategic and international political reasons' among the permanent UN Security Council members. 67 Consequently, this has created a perception that it is only African sitting heads of state (starting with Al Bashir of Sudan in 2009, Gaddafi of Libya in 2011, Kenyatta and Ruto of Kenya in 2012) that commit international crimes and need intervention from the ICC. This has provided a basis for some African leaders to criticise or perceive the ICC as Ôa biased instrument of post-colonial hegemony' 68 which is Ôintended for developing and weak countries and was a tool to exercise cultural superiority' 69 and thus a Ôvessel for oppressing Africa again'. 70 While there is some merit in criticising the practice of the Security Council, two observations should be noted.
First, it must be acknowledged that none of the African nonpermanent Security Council members voted against the UN Security June 1997, para 36 noting: ÔThe fact that the Security Council, for previously prevailing geo-strategic and international political reasons, was unable in the past to take adequate measures to bring to justice the perpetrators of crimes against international humanitarian law is not an acceptable argument against introducing measures to punish serious violations of international humanitarian law when this becomes an option under international law.' 68 F Makana, ÔUgandan President Yoweri Museveni Lashes out at ICC, Wants Africa to Pull Out' Standard, 13 December 2014, http://www.standardmedia.co.ke/ article/2000144601/ugandan-president-yoweri-museveni-lashes-out-at-icc-wants-afri ca-to-pull-out. 69  non-permanent Security Council members including South Africa have contributed to the practice of Security Council referrals of African situations to the ICC. The five permanent members would be unable to refer a situation without the concurrent vote of other nonpermanent members, since a Chapter VII decision requires a majority. Besides, there is no doubt that attacks on the civilian population in Darfur were war crimes and crimes against humanity. 73 It is in this context that the AU Commission of Inquiry on South Sudan recommended that Ôthose with the greatest responsibility for the atrocities at the highest level should be brought to account'. 74 Since Sudan was unable or unwilling to do so, the Security Council referral of the situation in Darfur to the ICC is understandable.
Second, any investigation and proceedings that may arise from any situation referred by the UN Security Council to the ICC is not determined by the Security Council but governed by the Rome Statute and the ICC Rules of Procedure and Evidence. 75 Decisions are made by the ICC independent judges through a judicial process and are Ônot influenced by the Security Council or any other external body'. 76 No evidence exists to show any lack of independence on the part of ICC judges in the performance of their judicial functions. 77 Nonetheless, the current practice of the UN Security Council referral of African situations while ignoring non-African situations reflects wider political dynamics at the Security Council. Pressure by some UN Security Council permanent members undermines efforts at accountability and impedes the Council from carrying out its referral Footnote 72 continued of 11 in favour, none against with 4 abstentions (Algeria, Brazil, China, United States). 73  duties to the ICC Prosecutor in an impartial and effective manner. It also undermines attempts to adopt resolutions that would have helped to hold parties accountable. For instance, in the past five years, Russia has vetoed seven Security Council texts on the Syrian conflict, while China has cast a negative vote six times on the issue. 78 The UN Security Council remains a political body that is subject to veto wielding and has been inconsistent in referring situations to the ICC. In this context, the UN Secretary General noted: [T]here remain serious challenges in pursuing accountability. Some situations which, by any objective analysis, would have warranted some form of action by the Security Council, have faced serious obstacles or languished entirely. This has eroded the Council's credibility. There is a need to address this problem, and to bring some consistency to the effort. 79 It is essential for the Council to correct its failings by taking concrete action to refer all deserving situations to the ICC. This requires developing a transparent and consistent policy setting out objective criteria for deciding whether or not to refer a situation to the ICC without any perception of double standards. This will provide an opportunity for the ICC to extend its global reach.

Security Council Exemption of the US Nationals from the ICC Jurisdiction
In 2002 the US passed the American Service-members Protection Act, which prohibits cooperation with the ICC. 80 Based on the insistence of the US, the two Security Council referrals in Darfur and Libya limited the personal scope of ICC jurisdiction by excluding certain categories of individuals from non-state parties to the Rome Statute. In the Darfur referral, for example, the Council decided that: nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome  Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State. 81 The above paragraph, which discriminates on the basis of nationality, was intended to protect US nationals from the ICC jurisdiction and it was included in the SC resolution as a condition for the US not to veto the resolution. 82 A similar paragraph was included in the SC resolution referring the Situation in Libya to the ICC Prosecutor, 83 and in the draft resolution for the Syria referral. 84 Such discriminatory referrals were criticised by states upon adoption. 85 The Office of the Prosecutor (OTP) stated that it has not accepted the effects of the above discriminatory paragraph and it has stated before the UN Security Council that it has competence over NATO troops in Libya. Nonetheless, these referrals were acted upon by the Court without determining whether the UN Security Council resolutions of situations in Darfur and Libya were compatible with article 13(b) of the Rome Statute and the principle of non-discrimination. The Security Council is not empowered to impose discriminatory exemptions to the exercise of the jurisdiction of the ICC. It follows that discriminatory exemptions granting immunity to nationals of non-state parties who commit crimes in a situation referred to the Court do not bind the ICC. Nonetheless by acting upon the UN Security Council referrals in Sudan and Libya, without any judicial determination of the effect of the purported exemption clauses on the exercise of the Court's jurisdiction, the ICC appears to have, at least in practice, 81  implicitly accepted the exemption paragraphs. 86 Although the OTP stated that it has not accepted the effects.
A Ôsituation' under article 13(b) must be referred to the Prosecutor without any prohibited discriminatory limitation. Under Article 21(3) of the Rome Statute the application and interpretation of law by the Court Ômust be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, … age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status'. 87 This applies to Ôall of its [the Court's] constituent organs', 88 namely the Presidency, the Chambers, the Office of the Prosecutor and the Registry. 89 Only then can the Prosecutor, in exercising prosecutorial discretion in selecting situations and cases under the Rome Statute, 90 and the Court, observe the Ôinterests of justice' including the principle of equality before the law and nondiscrimination, which flows from principles of independence, impartiality and objectivity. 91 Discriminatory Security Council referrals leading to investigations and prosecutions which exclude individuals (who may have committed crimes within the ICC's jurisdiction) on the basis of nationality have indeed undermined the credibility of the ICC by subsuming org/x/cases/mucic/acjug/en/cel-aj010220.pdf. 88 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on an Amicus Curiae application and on the ''Requeˆte tendant a`obtenir pre´sentations des te´moins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorite´s ne´erlandaises aux fins d'asile'' (articles 68 and 93(7) of the Statute), ICC-01/04-01/07 (9 June 2011), para 77. 89 Rome Statute (n 1), Art 34. 90 Ibid., Art 53(1)(a)-(c). In determining whether there is a Ôreasonable basis' to proceed with an investigation into a situation the Prosecutor considers: (i) jurisdiction (temporal, either territorial or personal, and material); (ii) admissibility (complementarity and gravity); and (iii) the interests of justice. 91  Ôthe independence of the ICC into the political and diplomatic vagaries of the Security Council'. 92 As noted above, this is particularly the case given that three permanent members of the UN Security Council namely Russia, China, and the US are not parties to the Rome Statute and thus are outside the ICC's jurisdiction. It should be recalled that when the Rome Statute was adopted in 1998, 120 states voted for the establishment of the ICC with 21 abstentions and 7 against (including the US, Israel and China). 93 Both the US 94 and Russia 95 signed the Rome Statute in 2000 but later Ôunsigned' the Statute by making their Ôintention clear not to become a party to the treaty', in 2002 and 2016 respectively. 96 Russia's withdrawal was made shortly after the ICC Prosecutor examined crimes allegedly committed in the context of Russia's military actions in Georgia, Crimea and Ukraine and called the Crimea situation an international armed conflict and occupation. 97 Both the US and Russia intended to cancel their legal obligation to refrain from defeating the object and purpose of the Rome Statute i.e. not to create conditions for or facilitate in any way the commission of genocide, crimes against humanity, war crimes and aggression. 98 Accordingly, they made it clear that they do not intend to ratify the Statute in the future or of cooperating with the ICC in a meaningful way. This was part of the strategy to shield American and Russian nationals from potential ICC prosecutions in the future.
Thus while powerful permanent UN Security Council members non-parties to the Rome Statute are highly influential in deciding which Ôsituation' should be referred to the ICC Prosecutor to determine whether a particular situation should give rise to a criminal investigation, they have been able to avoid ICC investigations and prosecutions. De facto, they enjoy immunity from ICC investigations and prosecutions arising from the prospect of a UN Security Council referral. They have used their veto privilege to block referral of situations involving their allies to the ICC Prosecutor. This has been the case in states that are not parties to the Rome Statute-and have not accepted the jurisdiction of the Court on an ad hoc basis-but allies of some UN Security Council permanent members. For example, despite existence of evidence showing that crimes within the jurisdiction of the ICC appear to have been committed in Syria a referral to the ICC was blocked. 99 In the words of the Russian Federation delegate: The United States frequently indicates the ICC option for others, but is reluctant to accede to the Rome Statute itself. In today's draft resolution, 100 the United States insisted on an exemption for itself and its citizens. Great Britain is a party to the ICC, but for some reason is unenthusiastic about the exploration in the Court of crimes committed by British nationals during the Iraq war. If the United States and the United Kingdom were to together refer the Iraqi dossier to the ICC, the world would see that they are truly against impunity. 101 The criticism above reveals that Russia is well aware that some states in particular the US support ICC investigations for crimes committed 99  Ôprepare files in order to facilitate and expedite fair and independent criminal proceedings' in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law. 107 Unlike the Security Council, the General Assembly lacks the authority to refer the situation in Syria to the ICC or to establish an ad hoc international criminal tribunal for Syria with the legal authority to charge individual perpetrators or to require state cooperation. Furthermore, it cannot mandate states to cooperate with the ICC, though it can recommend that the Security Council take such actions in the future to ensure that perpetrators of international crimes in Syria are held accountable. 108 It is worth noting that the General Assembly has been involved in prior accountability efforts since 1946 to promote cooperation by states to investigate and punish international crimes. 109 Thus, establishing such a Mechanism builds upon earlier practice of the General Assembly with respect to investigative bodies such as Commissions of Inquiry or Expert Panels with a view to assisting future accountability efforts. However, Russia (and Syria) have opposed this Mechanism on the basis that it was granted powers Ôprosecutorial in nature', which the General Assembly does not itself possess. Thus, Russia claimed that Ôthe General Assembly acted ultra vires -going beyond its powers' as set out in the UN Charter. 110 This is incorrect because the powers of the Mechanism do not include the prosecution of anyone and cannot, therefore, 107 Ibid. be considered as being Ôprosecutorial in nature'. Accordingly, the opposition to the Mechanism is political rather than strictly legal. The Mechanism is an important step in the promotion of the principle of accountability for international crimes. This is because it provides a way to Ôcollect, consolidate, preserve and analyse' evidence of crimes to criminal law standards (identifying perpetrators for possible future prosecution) where there exists political resistance preventing any international tribunal from investigating and prosecuting crimes committed in Syria. 111 This increases the prospects of future accountability and justice for Syria since the Mechanism is aimed at assisting any recognised exercise of criminal jurisdiction, whether by Syria, any other state, or competent international or regional court/ tribunal. It also presents an important precedent for future situations faced with a political impasse within the Security Council.

Has the ICC Unfairly Focused on Africa?
Credibility of a judicial institution, like the ICC, depends in part on its independence and its performance. While it is true that the ICC's first active investigations and prosecutions were exclusively in Africa, 112 three observations must be noted. First, five African situations -Central African Republic (CAR), Coˆte d'Ivoire, Democratic Republic of the Congo (DRC), Mali, and Uganda -were Ôself-referrals' brought voluntarily to the ICC by concerned African states so that the Court can investigate and prosecute domestic leaders/commanders of rebel groups in Africa. Both the Union of the Comoros (Comoros) and Gabon have also referred situations on their territories to the ICC. While a state party to the Rome Statute may refer to the ICC Prosecutor for investigation Ôa situation in which one or more crimes within the jurisdiction of the Court appear to have been committed' (in any other ICC state party), 113   concurred with the Office of the Prosecutor and authorised the commencement of the investigations. 119 In all African situations before the ICC, the ICC has acted to hold accountable perpetrators of the crimes for the benefit of African victims of alleged crimes that African states were unable or unwilling to investigate and prosecute. This contributes to lasting peace, security and stability in Africa. All ICC judicial decisions from the authorisation of investigations to the confirmation or non-confirmation of charges and decisions on guilt or innocence are and have been Ôtaken independently on the basis of the law and the available evidence and are not based on regional or ethnic considerations'. 120 Third, the Prosecutor has since made good progress by investigating situations outside Africa as reflected in an investigation opened in Georgia in 2016. 121 In addition, although in the past the Prosecutor decided not to proceed in certain politically complex non-African situations, such as with Iraq, Korea, Palestine and Venezuela, on the basis that the legal criteria under Article 53 was not met, there has been a change in approach. At the time of writing, the Prosecutor's was carrying out preliminary examinations in non-African situations including Afghanistan, Colombia, Iraq (UK military intervention in Iraq), Palestine, Registered vessels of Greece and Cambodia, and Ukraine. 122 Such recent developments indicate that the Prosecutor is willing to investigate non-African situations. In this context the Prosecutor's announcement to reach a final determination with respect to the situation in Afghanistan and the Comoros referral is to be welcomed. 123 It should be noted, however, that many preliminary examinations are mired in delays. cost of over one billion US dollars, making the ICC one of the most expensive courts in the world. 130 At the time of writing, there were three ongoing cases at the trial stage involving former warlords from the DRC 131 and Uganda, 132 as well as the ex-President of Cote d'Ivoire. 133 With the exception of Al Mahdi trial which was completed within less than 1 year (because the accused pleaded guilty), 134 the trials of Lubanga and Katanga took over 5 years between the confirmation of charges and the convictions. 135 With staff of over 800 staff members, 136 the Court's approved annual budget in 2016 was e136,585,100 and several contributions were outstanding. 137 As of 15 September 2016 the total outstanding contributions, including the regular budget, the Contingency Fund and interest on the host State loan, stood at e34, 163,902. 138 The growing number of preliminary examinations, investigations and prosecutions would require more resources. The Court's 2017 programme budget was approved at e144,587,300. 139 Despite such a huge budget, the ICC has been able to convict only non-state actors. The main case against a serving head of state arising out of the UN Security Council referral (Al Bashir of Sudan) stalled primarily due to the Council's failure to put pressure on Sudan to cooperate fully with the Court or to surrender Al Bashir to the Court, thus undermining the ICC's investigations. 140 All the five suspects 141 against whom ICC arrest warrants were issued in the situation in Darfur remain at large in Sudan nearly a decade later after the first warrant was issued primarily due to the Security Council's lack of robust, swift and concrete action after the referral to induce Sudan and other States to execute the arrest warrants. 142 This has emboldened Al Bashir to travel to both ICC state and non-state parties as well as emboldening states to continue to host him. 143  must be acknowledged that during its first 16 years the ICC has established itself as a functioning institution with investigations, arrests, trials, convictions, acquittals and appeals. As at the time of writing in January 2017, the Court had three trials running, one of which was expected to be completed in 2018 and the other two in 2019 but there were no cases at the pre-trial stage. 146 An increase in the number of situations and cases before the ICC means that that there will be an increase in the Court's workload/ activities (e.g. outreach and public information, investigations, legal aid for victims and accused, trial preparation, funds for victims) and long-term spending pattern of the ICC over the years. 147 Unlike other international criminal tribunals created in recent decades with limited temporal and geographical jurisdiction, 148 the ICC is a permanent court whose membership has been growing over the years. This requires increased prioritisation in the exercise of prosecutorial discretion and improvement in the quality and efficiency of the Court's core activities including preliminary examinations, investigations, analysis, trials and appeals. 149

UN Security Council's Failure to Defer Investigation or Prosecution
Another reason advanced by South Africa for its withdrawal notification from the Rome Statute is that: ÔThe Security Council has also not played its part in terms of Article 16 of the Rome Statute where the involvement of the ICC will pose a threat to peace and security on 146  the African continent'. 150 Although South Africa did not provide further details, its claim is based on the failure of the UN Security Council to defer situations in Darfur and Kenya with specific reference to cases arising from those situations concerning some prosecution of African heads of state. In 2008 when the ICC Prosecutor announced that he was seeking an arrest warrant against President Al Bashir of Sudan, the AU called upon the Security Council to apply Article 16 of the Rome Statute and Ôdefer the process peace and security) would make it necessary to delay international criminal justice (ICC investigation or prosecution). Article 16 reads: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. many states considered that it was an unacceptable encroachment upon judicial independence. As yet, the Court has not yet interpreted the scope of Article 16 but the Security Council has used it in two resolutions to protect officials or personnel of the Security Council members and their close allies. 160 Following the failure of the UN Security Council to defer the investigations or prosecutions in African situations in particular those relating to heads of states in Darfur/Sudan and Kenya, as requested by the AU, South Africa, acting on behalf of AU State Parties to the Rome Statute, proposed, some amendments to the Statute. This was made in accordance with Article 121(1) of the Rome Statute. It specifically proposed an amendment to Article 16 in order to allow the UN General Assembly to exercise deferral powers when the Security Council fails to act. 161 South Africa's proposal provided for the addition of the following paragraphs to the current Article 16: (2) A State with jurisdiction over a situation before the Court may request the UN Security Council to defer the matter before the Court as provided for in (1) above.
(3) Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council's responsibility under paragraph 1 consistent with Resolution 377 (v) of the UN General Assembly. 162 The above proposal was not adopted since it raised several questions with regard to the relationship between the UN Security Council and the UN General Assembly as well as the relationship between the ICC and the UN. 163

Conflicting International Law Obligations
Another reason advanced for South Africa's withdrawal notification from the ICC is that the Rome Statute has been interpreted in a manner that has led to Ôconflicting international law obligations'. 164 In particular, South Africa's Minister of Justice stated that the Rome Statute compel ICC state parties including South Africa to Ôarrest persons who may enjoy diplomatic immunity under customary international law who are wanted by the court'. 165 In effect the claim here is that compliance with the Rome Statute would lead to a breach of obligations to other states. The alleged obligations relate to whether or not a head of state non-party to the Rome Statute (in particular, President Al Bashir of Sudan subject to two ICC arrest warrants for crimes against humanity and genocide) enjoys immunities ratione personae from arrest and surrender to the ICC. 166 On 4 March 2009, ICC Pre-Trial Chamber I (composed of Judge Akua Kuenyehia, Presiding Judge, Judge Anita Usacka, and Judge Sylvia Steiner) stated that Ôthe current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court's jurisdiction over the present case'. 167 This determination was based on four considerations namely the goal of ending impunity for the perpetrators of the most serious crimes as stated in the Rome Statute's preamble; Article 27 of the Statute; the law applicable was the Rome Statute, Elements of Crimes and its Rules of Procedure and Evidence; and the effect of the Security Council. 168 The Chamber stated that: …by referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole. 169 The Chamber decided that the Registry Ôprepare a request for cooperation seeking the arrest and surrender of Omar Al Bashir' to the ICC. Accordingly the Registry requested all ICC state parties to 164 180 According to South Africa arresting senior state officials such as African heads of state or ministers who are subject to ICC arrest warrants makes it impossible to participate in the peaceful resolution of conflicts. 181 Yet negotiation of peace agreements (to end armed conflicts, which so often unleashes serious crimes) may require the participation of African heads of state or senior ministers who are subject of ICC arrest warrants. Accordingly, South Africa claimed that to Ôcontinue to be a State Party to the Rome Statute will 176  compromise its efforts to promote peace and security on the African Continent'. 182 The claim here is that the interpretation given to Articles 27 and 98 of the Rome statute compel South Africa (in particular in situations referred to the Court by the Security Council) to arrest persons in South Africa including serving heads of states of foreign states subject to ICC warrants who may enjoy diplomatic immunity under customary international law, and Ôto surrender those persons to the International Criminal Court, even under circumstances where the Republic of South Africa is actively involved in promoting peace, stability and dialogue in those countries'. 183 According to South Africa, Ôarrest of such a person by a State Party pursuant to its Rome Statute obligations, may therefore result in a violation of its customary international law obligations' on diplomatic immunity or head of state immunity. 184 In South Africa's view, this immunity is necessary in order to Ôeffectively promote dialogue and the peaceful resolution of conflicts wherever they may occur'. 185 It should be noted that according to Article 25 of the UN Charter the UN members Ôagree to accept and carry out the decisions of the Security Council' in accordance with the Charter. 186  Does the Rome Statute require ICC state parties to act in a violation of customary international law of immunity to a serving head of state (from arrest and surrender)? Immunity provisions under Articles 27 and 98, interpreted in accordance with the object and purpose of the Rome Statute, do not lead to violation of customary international law. Article 27 aims at eliminating impunity by providing that immunity is not a bar to the Court's jurisdiction: 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
The removal of immunity under Article 27 applies to officials of state parties to the Rome Statute and not to non-state parties to the Rome Statute. This is because a Ôtreaty in force is binding upon the parties to it' and such a treaty Ôdoes not create either rights or obligations for a third state'. 189 Therefore, Article 98(1) protects state sovereignty by recognising customary international law rules concerning state or diplomatic immunities reflected in an exemption from arrest and surrender of a person or property of a non-state party to the Rome Statute. It provides that: The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Clearly, Article 98(1) limits the avenues for surrendering individuals or property of a Ôthird state' 190 to the ICC that are entitled to immunity principally under customary international law. 191 Some African ICC states parties (Malawi,192 Chad, 193 DRC 194 and South Africa 195 ) refused to arrest and surrender President Omar Al Bashir of Sudan during his presence in respective states partly on the basis that complying with the ICC requests would require violation of head of state immunities under customary international law. In its decisions on Malawi and Chad, the ICC Pre-Trial Chamber (composed of Judge Sanji Mmasenono Monageng, Presiding Judge, Judge Sylvia Steiner, and Judge Cuno Tarfusser), in December 2011, accepted that there is Ôan inherent tension between articles 27(2) and 98(1) of the [Rome] Statute and the role immunity plays when the Court seeks cooperation regarding the arrest of a Head of State '. 196 The Chamber went on to observe that Article 98(1) was not applicable because customary international law Ôcreates an exception to Heads of State immunity when international courts seek a Head of State's arrest for the commission of international crimes'. 197 The Court stated that the unavailability of immunities with respect to 190 Ibid., Arts 2(1)(h), 34-38. The term Ôthird state' means Ôa State not a party to the treaty'. In the context of cooperation treaties it is used to refer to a state that is a third party to the cooperation request. Under Article 98 of the Rome Statute a Ôthird state' could refer to any other state that still has immunities. 191  prosecution Ôapplies to cooperation' 198 and that to interpret Article 98(1) as allowing the requested states to refuse to arrest and surrender heads of state Ôwould disable the Court and the international criminal justice'. 199 Despite the above observations, the Court did not give an interpretation of Article 98(1). It, therefore, did not address the Ôtension' between Articles 27(2) and 98(1) but based its decision on Article 27, while ignoring completely the need to interpret Article 98(1) as if it was not part of the Rome Statute. If immunity under customary international law does not exist when the ICC seeks arrest of a person entitled to immunity (e.g. a head of a non-state party to the Rome Statute) for the commission of international crimes, then Article 98 is effectively redundant. In 2014 the Pre-Trial Chamber (with two new judges who did not participate in Malawi and Chad decisions) 200 attempted to address the scope of Article 98(1) by noting that: it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court. Such personal immunities are ensured under international law for the purpose of the effective performance of the functions of sitting Heads of States. This view has also been supported by the International Court of Justice (the ''ICJ''). 201 An exception to the personal immunities of Heads of States is explicitly provided in article 27(2) of the Statute for prosecution before an international criminal jurisdiction. According to this provision, the existence of personal immunities under international law which generally attach to the official capacity of the person ''shall not bar the Court from exercising its jurisdiction over such a person''. 202 The Chamber correctly noted that Article 27(2) should Ôin principle, be confined to those State Parties who have accepted it'. 203 Therefore, the Chamber accepted that Ôwhen the exercise of jurisdiction by the Court entails the prosecution of a Head of State of a non-State Party, 198 Ibid., para 44. 199 Ibid., para 41. the question of personal immunities might validly arise. The solution provided for in the Statute to resolve such a conflict is found in article 98(1) of the Statute'. 204 Accordingly, in a case dealing with a head of state not party to the Rome Statute, who is wanted by the ICC, and where there is no relevant Security Council referral or binding treaty removing immunity, immunity ought to continue to be given effect to in the light of the position under customary international law. However, according to the Chamber, the Security Council Ôimplicitly waived' the immunities granted to Omar Al Bashir under international law and attached to his position as a head of state by virtue of SC Resolution 1593 (2005) for the purpose of the proceedings before the Court. 205 It follows that under customary international law, a head of state does not possess immunity in cases where that immunity has been waived or removed either implicitly or explicitly by the Security Council or treaty such as the Genocide Convention 206 to which a state is a party. Consequently, the Security Council referral has the effect of making the Rome Statute (including Article 27) applicable to non-state parties and removes immunity in that situation. It is essential for the Security Council, when it makes a Chapter VII referral with regards to a situation concerning a nonparty to the Rome Statute, to explicitly waive immunities and to impose clear obligations of cooperation in accordance with the provisions of the Rome Statute on that non-party and ICC state parties. Since the UN Security Council imposed an obligation on Sudan, that Sudan Ôshall cooperate fully', presumably that imposes all the coop- 204 Ibid., para 27.  206 See Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, entered into force 12 January 1951, Art IV provides: ÔPersons committing genocide … shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals'. eration obligations in part 9 of the Rome Statute. In this regard, the non-state party has an international law obligation to cooperate with the Court arising under the UN Charter. As noted above, this obligation prevails over any other treaty obligation. Therefore, in such a case there is no violation of customary international law immunity (from arrest in states cooperating with the ICC) and thus no conflicting international law obligations arise. State parties to the Rome Statute remain obliged to cooperate with the Court as parties to the Rome Statute, rather than on the basis of the UN Charter.

III IMPACT OF THE WITHDRAWAL NOTIFICATIONS BY SOUTH AFRICA, BURUNDI AND THE GAMBIA
The general effect of withdrawal is that, subject to Article 127(2), a withdrawing state will no longer be a party to and bound by the Rome Statute once withdrawal becomes effective. 207  The result of withdrawals could be a Court membership that is slightly smaller in number but more committed to cooperation with the ICC.
However, it must be noted that withdrawals represent a loss to the Court and to the victims it serves by limiting the Court's ability to investigate and prosecute any future international crimes after the withdrawal notices come into effect. This is because withdrawing states will no longer be bound by the Rome Statute including the obligation to Ôcooperate with the ICC and to arrest and surrender to the Court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance'. 218 Withdrawals would strip victims of one of the most important judicial institutions with a potential to investigate and prosecute international crimes and potentially allow such crimes to be committed by state officials with impunity in the future. African victims continue to rely on the ICC to investigate crimes committed by senior state officials. considers to be protected by immunities under international law. 233 If effectively developed, such mechanisms could be used to clarify the procedure to be followed by the Chamber pursuant to Article 98(1) or (2) as to whether a conflict of obligation indeed exists and whether the Court should indeed not proceed with its request. This has the potential to prevent future perceived or real conflict of obligations like those advanced by South Africa following Al Bashir's visit to South Africa. Furthermore, following South Africa's withdrawal notification, without prior parliamentary approval, the High Court of South Africa declared the notification Ôunconstitutional and invalid' and ordered the responsible government officials 234 to Ôrevoke the notice of withdrawal'. 235 To comply with the above judgment, the Government of South Africa revoked with immediate effect its notification of withdrawal on 7 March 2017, signalling possibly that South Africa does not intend at present to proceed with its withdrawal. 236 As such, a new notification is required, after obtaining prior parliamentary approval, to restart the 12-month withdrawal period provided for under Article 127(1) of the Rome Statute. In the absence of a new notification of withdrawal by the Government of South Africa, the High Court judgment will, at the very least, delay the timeline for withdrawal. This provides an opportunity to renew South Africa's commitment to the principles and values upheld by the Rome Statute.
Importantly, the non-cooperation proceedings against South Africa at the ICC afford an opening for judicial clarification of the immunity provisions of the Rome Statute, Articles 27 and 98. 237 These Articles have thus far been interpreted in an unsatisfactory and inconsistent manner. 238 If the ICC can more convincingly address the issue of immunities through consistent and satisfactory judicial means, taking into account the concerns of South Africa and other member States, this could address concerns raised by South Africa and render withdrawal unnecessary or unjustifiable. This would prevent other states with similar concerns raised by South Africa from considering future withdrawals and instead focus on cooperation and meaningful engagement with the ICC.
Finally, withdrawals are likely to be followed by the repeal of domestic legislation (e.g. the South African Implementation of the Rome Statute of the International Criminal Court 2002), which gives domestic effect to the Rome Statute. 239 The repeal of ICC domestic implementing legislation constitutes a form of parliamentary approval for withdrawal from the Rome Statute. This is because after withdrawing from the Rome Statute, concerned states will no longer be under a legal obligation to give effect to the domestication of the provisions of the Rome Statute into national law to ensure that such law became compatible with the Statute. Should this take place, without adopting new legislation for domestic investigation and prosecution of international crimes, an important legal basis for the domestic prosecution of international crimes would be seriously weakened. It will be more difficult to get the full cooperation from withdrawing states in new situations and cases after withdrawals have taken effect.

IV AFRICAN COURT ON HUMAN AND PEOPLES'
RIGHTS : AN ALTERNATIVE TO THE INTERNA-TIONAL CRIMINAL COURT? In principle, a case being genuinely investigated or prosecuted by a lawfully constituted regional, sub-regional or bilateral tribunal or court may be regarded as being Ôinvestigated or prosecuted by a State which has jurisdiction over it' and thus inadmissible before the 238  ICC. 240 Although the ICC is Ôcomplimentary to national criminal jurisdictions', 241 nothing in the Rome Statute prevent states from acting collectively at regional, sub-regional or bilateral levels to establish effective criminal tribunals or courts to genuinely carry out investigations and prosecutions of international crimes. Following South Africa's withdrawal notification from the Rome Statute, a statement was issued by South African Ministry of Justice and Correctional services explaining that after withdrawing from the Rome Statute: South Africa will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and Peoples' Rights, created to deal with such crimes [crimes against humanity and other serious crimes] and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments. 242 The above position is misleading since the African Court on Human and Peoples' Rights does not have temporal, personal and subjectmatter jurisdiction over international crimes such as genocide, war crimes, crimes against humanity and aggression. At the time of writing, there was no operational regional, sub-regional or even bilateral court in Africa with jurisdiction over international crimes. The jurisdiction of the African Court on Human and Peoples' Rights is explicitly limited by the Court's founding treaty to determining human rights cases and disputes submitted to the Court concerning the interpretation and application of the African Charter on Human and Peoples' Rights, 243 the Protocol establishing this Court and any other relevant human rights instrument ratified by the States concerned. 244 Thus, given its explicit limited subject-matter jurisdiction, the African Court on Human and Peoples' Rights cannot be a regional alternative to the ICC. Similarly, it cannot be a court that is complementary to the ICC since it cannot conduct criminal investigations and prosecutions on behalf of any state party to the Rome Statute. If South Africa meant strengthening the yet-to-be-established African Court of Justice and Human and Peoples' Rights, this Court does not justify withdrawing from the Rome Statute. Although the new African Court will have three chambers dealing respectively with international crimes, 245 inter-state disputes and human rights, 246 it will still not be an effective alternative (or even complementary) to the ICC with respect to serving senior state officials for three reasons.
First, unlike Article 27 of the Rome Statute (and the practice of several international criminal tribunals) 247 which removes immunities of heads of states parties to the Rome Statute and other senior state officials when the ICC investigates, prosecutes or tries an accused, the African Court of Justice and Human and Peoples' Rights will not have jurisdiction over serving heads of state or senior state officials. Article 46A bis of the African Court of Justice Court Protocol explicitly protects immunity in the following terms: No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office. 248 The scope of the above provision is unclear. First, what is meant by Ôanybody acting or entitled to act in such capacity'? Is this limited to the deputy head of state or government or does it extend to all ministers and all members of parliament? Second, does Article 46A bis provide both immunity ratione personae (covering all acts, whether in private or official capacity of heads of state or government and ministers of foreign affairs) and immunity ratione materiae (covering state officials acting as such) or only one type of immunity -immunity ratione materiae? Is the phrase Ôbased on their functions' in Article 46A bis limited to Ôother senior state officials' or does it also extend to Ôany serving AU Head of State or Government', or Ôanybody acting or entitled to act in such capacity'? Third, are serving AU state officials who acquire or maintain power through Ôunconstitutional change of government' entitled to immunity before the African Court? 249 These questions will have to be addressed by the Court.
It is clear nonetheless that the African Court of Justice and Human and Peoples' Rights, when established, will exercise jurisdiction primarily over non-state actors. Article 46A bis above clearly indicates that AU heads of state who adopted the above immunity provision were opposed to criminal justice being applied to them. This is consistent with the AU's claim that under customary international law: ÔHeads of state and other senior state officials are granted immunities during their tenure of office'. 250 According to the AU these immunities apply to proceedings in both Ôforeign domestic courts' as well as to Ôinternational tribunals'. 251 However, this view goes against the position of the International Court of Justice which recognised that state officials may be subject to criminal proceedings before Ôcertain international criminal courts' or tribunals (as opposed 248  to prosecution before courts of foreign states) having jurisdiction in certain instances. 252 Article 46A bis is intended to protect serving AU heads of states and other state officials from being held accountable for potential individual criminal responsibility for the most serious crimes. It will thus not enhance the struggle against impunity for ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC by serving senior state officials. Granting immunity to Ôany serving AU Head of State or Government', or Ôanybody acting or entitled to act in such capacity', and undefined Ôother senior state officials' while in office may have the effect of encouraging more AU heads of state to stay longer in power to avoid criminal accountability. In contrast, Article 27 of the Rome Statute provides that Ôofficial capacity as a Head of State or Government… shall in no case exempt a person from criminal responsibility' and that immunities shall not bar the Court from exercising its jurisdiction. 253 Due to the granting of immunity, relevant cases involving AU state officials would remain admissible before the ICC where it has jurisdiction under Article 17 of the Rome Statute as a consequence of inaction. 254 This is because the effect of immunity is that no Ôcase' will be investigated or prosecuted by the African Court (on behalf of any state having jurisdiction) against senior state officials. As a result, cases involving African state officials will remain admissible before the ICC since it will not be possible to argue that the Ôsame individual and substantially the same conduct' as alleged in the proceedings before the ICC is being investigated or prosecuted before the African Court. 255 Second, the criminal jurisdiction of the African Court of Justice and Human and Peoples' Rights will only apply to crimes committed after the entry into force of the Court's Protocol and establishment of the Court. 15 ratifications are required for the Protocol to enter into force, but by January 2017 none had been secured for more than two 252 259 Finally even if the Protocol enters into force, ratified by all withdrawing states and Article 46A bis is amended to remove immunity, there are still other legitimate concerns about the likely effectiveness of the African Court. These include the very wide jurisdiction of the Court, the poor structure of the Court, human resource capacity, and the capacity of African states to meet the financial needs of such a Court. 260 V CONCLUSION While signing and ratifying the Rome Statute is a voluntary and a sovereign decision of every state, state withdrawals from the Rome Statute undermine the global movement towards greater accountability to put an end to impunity for the perpetrators of the most serious crimes (genocide, crimes against humanity, war crimes and aggression) and a ruled-based international order. Withdrawals from the Rome Statute limit the Court's jurisdictional reach and its ability to provide justice to the victims of such crimes and contribute to the prevention of future atrocities. Withdrawing from the Rome Statute without a credible alternative mechanism (national or regional judicial systems) in place to investigate and prosecute international crimes without any distinction based on official capacity shields state officials who commit crimes from accountability. It also undermines the AU's Ôcondemnation and rejection of impunity' in respect of grave crimes, in particular genocide, war crimes, and crimes against humanity. 261 A number of measures may be taken to prevent further future justifications of withdrawals by African states from the Rome Statute.
First, the ICC mainly through the Assembly of States Parties must engage in a meaningful and constructive dialogue with the reasons -Ôgood' or Ôbad' -advanced by withdrawing states, such as those advanced by South Africa, to justify withdrawal. To enhance the credibility of the ICC and complementarity with the state parties, the ICC Prosecutor, President of the Court and President of the Assembly of State Parties should conduct extensive awareness campaigns. While more outreach would require more resources, it is helpful to counteract media, political and diplomatic (mis)information campaigns used by states to undermine the ICC. Such campaigns should be done in cooperation with state parties, UN bodies, regional organisations and relevant domestic actors (such as the judiciary, prosecutors, lawyers, victims, and civil society) on the ICC's work at the national, sub-regional, regional and international levels.
Second, the Prosecutor must demonstrate that crimes within the jurisdiction of the Court are investigated objectively wherever such crimes are committed. In particular, the Prosecutor must ensure that all crimes within the jurisdiction of the Court committed in appropriate non-African situations are pursued beyond preliminary investigations. These include crimes against humanity and war crimes committed by parties to the conflict -the Georgian armed forces, the South Ossetian forces, and the Russian armed forces -in the context of an international armed conflict in and around South Ossetia, Georgia between 1 July and 10 October 2008 262 ; war crimes com-261 Constitutive Act of the African Union, 11 July 2000, 4(o) and 4(h). 262 See Pre-Trial Chamber 1, Situation in Georgia: Decision on the Prosecutor's Request for Authorization of an Investigation, No. ICC-01/15, 27 January 2016. mitted by members of the US armed forces and the US Central Intelligence Agency in Afghanistan 263 ; and crimes against humanity of torture, deportation, persecution, and other inhumane acts committed against asylum seekers including women and children by Australian government officials and their private contractors. 264 Third, it is proposed that instead of withdrawing from the Rome Statute, concerned African states could invoke Article 98(2) of the Rome Statute which provides that: The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
There are different views about the above provision. One view is that the above article was intended to protect the status of forces agreements in existence prior to signature of the Rome Statute. 265 On this basis it is argued that Article 98(2) Ôonly refers to existing agreements' which means Ôagreements concluded by a State party before the latter's signature of the Statute'. 266 Accordingly it is argued that a state intentionally negotiating an Article 98(2) designed to purposefully avoid its obligations to arrest and surrender a person sought by the Court would be violating the basic principle not to defeat the object and purpose of a treaty. 267 Another view is that Article 98(2) allows agreements negotiated and ratified subsequently. 268 Under the above provision, African states can negotiate a multilateral treaty among themselves to prohibit the arrest and surrender of any national of a non-party state including head of state or senior state official to the ICC provided any such individual is Ôindispensable' to the pursuit of a peace settlement for an ongoing conflict in Africa. 269 Once such a treaty enters into force, the Court is obliged to first obtain the consent of the Ôsending State' for the surrender of a person wanted by the ICC.
Fourth, since the ICC is not a substitute for national justice systems but it is rather Ôcomplementary' to them, 270 it is imperative that states develop effective national (or regional) criminal justice systems to genuinely investigate and prosecute international crimes. African states that are unable to carry out prompt, impartial, thorough and transparent investigations and/or prosecutions of crimes within the jurisdiction of the ICC must enhance their domestic institutional (investigative and judicial) capacity. This should include seeking assistance from the ICC Prosecutor's office, conducting legal reform by enacting and enforcing ICC national implementing legislation integrating provisions of the Rome Statute in domestic law including crimes within the Court's jurisdiction and granting authority to national prosecuting authority to refer situations to the ICC, cooperation with the Court and enforcement/execution of sentences, enhancing national capacity-building by training investigators, prosecutors and judges and infrastructure investment in the court system.
Fifth, the Rome Statute does not indicate whether a notification of withdrawal can itself be withdrawn at any time before the withdrawal becomes effective. In principle, it will be in the interest of victims of international crimes for Burundi to follow the example of The Gambia and South Africa to withdraw their withdrawal notifications and for other ICC state parties to refrain from withdrawing from the Rome Statute in the future. As noted above, the expanded jurisdiction of the African Court does not affect the jurisdiction of the ICC particularly over serving state officials who may enjoy immunity under Article 46 bis.
Finally, notifications of withdrawal from treaties must be consistent with relevant domestic law. 271 As confirmed by the South African High Court, South Africa's notification of withdrawal, without prior parliamentary approval, was unconstitutional, invalid and must 269 D Scheffer, ÔMore Options for Africa under the Rome Statute' Just Security, 19 November 2016, https://www.justsecurity.org/34669/options-africa-rome-statute-in ternational-criminal-court-scheffer/#more-34669. 270 Rome Statute (n 1), Preamble para 10, Arts 1 and 17. 271  be revoked. 272 Therefore, the executive must wait for parliament to successfully repeal the ICC domestic implementing legislation before submitting a valid notification of withdrawal to restart the 12-month withdrawal period under Article 127(1) of the Rome Statute. This period could be used by South Africa to reconsider the wisdom or desirability of withdrawing from the Rome Statute and to engage in constructive diplomatic dialogue and judicial mechanisms to address issues raised in Section II above.