Johannesburg – The African Union made headlines this week for purportedly agreeing to mass withdrawal from the International Criminal Court.
The reality is more complex though, argues Human Rights Watch (HRW).
The decision by AU member states after the announced withdrawals by South Africa, Burundi, and Gambia, to adopt the "ICC withdrawal strategy", and called for member states to consider implementing its recommendations.
"This is based on text we have seen that, while labelled a draft, reflects the final text, sources close to the negotiations said," HRW reported.
But there was also vocal opposition by some ministers to the withdrawal at the AU summit.
The Nigerian foreign minister said that the ICC has "an important role to play in holding leaders accountable", and that "Nigeria is not the only voice agitating against withdrawal, in fact Senegal is very strongly speaking against it, Cape Verde, and other countries are also against it".
Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state.
Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it, HRW stated.
Meanwhile, the "strategy" does not actually call for mass withdrawal, based on the text that HRW reviewed.
According to HRW, the document instead states: "Further research on the idea of collective withdrawal, a concept that has not yet been recognised by international law, is required."
Instead the document revisits AU concerns with the court – including its relationship with the United Nations Security Council (UNSC) and a bid to amend the court's statute to exempt sitting leaders implicated in widespread atrocities.
The document offers information about how states may withdraw from the statute, and notes that lack of adoption of AU proposals to amend the statute could be conditions for withdrawal, but says only that a "timeline for reform should be clearly agreed upon".
Outside of AU meetings, Nigeria, Senegal, Burkina Faso, Côte d'Ivoire, Mali, Malawi, Zambia, Tanzania, Ghana, Democratic Republic of Congo, Lesotho, Sierra Leone, and Botswana have clearly spoken out in their capitals, New York, and The Hague to expressly reaffirm their commitment to the ICC.
The new Gambian president, Adama Barrow, also expressed his intention for Gambia to retract its withdrawal.
HRW concluded that this support – and opposition to withdrawal plans – should be strengthened as the ICC was the only court of last resort to deliver justice for victims of mass atrocities when national courts were unable or unwilling.
As advocates for victims have said, its reach should be expanded, not curtailed, argued HRW.