THE opposition of many African governments to the International Criminal Court (ICC) is not new.
Since 2008, when former ICC prosecutor Moreno Ocampo launched charges against Sudan President Omar al-Bashir, African governments, acting within the framework of the African Union (AU), issued a number of declarations expressing increasing discontent about the process of the ICC on the continent.
It has now reached a new height following the decision of the AU to hold an extraordinary summit to discuss the mass withdrawal of African member states from the Rome Statute, establishing the ICC.
The resort to such an extraordinary measure, unprecedented in the history of the international legal order, has understandably sent shock waves across many capitals in Europe and among the mainstream international human rights community.
The recent surge in the AU’s opposition to the ICC arose with specific reference to the ongoing cases against the newly elected leaders of Kenya, President Uhuru Kenyatta and Vice-President William Ruto. It is to be recalled that at its May summit, the AU Assembly decided to request the ICC to refer the cases back to Kenya.
On July 8, the AU sent a letter to the president of the ICC communicating the decision of the assembly and urging it to allow a process to deal with the cases.
In the meantime, the ICC commenced the trial of Mr Ruto last month. In what many African governments considered to be further disregard of their voice, an earlier decision of the trial chamber of the ICC, allowing the trial of the Kenyan leaders in their absence, was suspended pending the decision of the appellate chamber of the court on the prosecutor’s appeal to reverse that decision.
In another letter addressed to the ICC, the AU reiterated its earlier communications to the ICC and requested the court "to allow the head of state of Kenya and his deputy to choose the sessions they wish to attend", having regard to the constitutional obligations that they are required to discharge as leaders of Kenya’s government.
Following the ICC’s response to the AU’s letter, that the request the AU made does not constitute a request legally presented within the court’s legal framework, the AU called for the summit to debate the future of Africa’s relationship with the ICC.
Africa played a key role in the establishment of the ICC in 1998. It is the continent with the largest regional grouping of member states of the Rome Statute.
There are 122 states that are party to the ICC, and 34 of them are African states. Now this largest regional membership of the ICC is under threat.
At the meeting of the United Nations (UN) General Assembly last month, African leaders including the AU chairman, Ethiopian Prime Minister Hailemariam Desalegn, Ugandan President Yoweri Museveni, Tanzanian President Jakaya Kikwete and Rwandan President Paul Kagame expressed their disappointment over "the failure" of the ICC to have regard for their repeated appeals on the Kenyan cases.
"The ICC continues to ignore repeated requests and appeals by the African Union" and this "attitude has become a major handicap that fails to reconcile the court’s secondary and complementary role in fighting impunity", said Mr Kikwete.
In the light of this discontent, the agenda of the summit on withdrawal from the ICC challenges not only the legitimacy but also the very future of the ICC. There is accordingly a palpable apprehension in many western capitals on the damage this may cause.
There are two more issues at stake for the ICC. First, all of the cases that the ICC is now dealing with are from Africa.
The lack of confidence African member states are expressing may lead to reluctance on the part of such states to co-operate with the ICC. This would seriously threaten the ICC’s ability to effectively and successfully adjudicate these cases.
Second, if the ICC files are anything to go by, Africa is also the continent from where the ICC expects to receive many of its future cases. If African states withdraw from the ICC, the court faces a bleak prospect of having no cases to adjudicate.
The only framework that would be left for the ICC for initiating cases in Africa is the UN Security Council referral under article 16 of the Rome Statute, a politically charged and contentious avenue whose legitimacy is severely contested.
Following the commencement of Mr Ruto’s trial and in the context of the anticipated opening of Mr Kenyatta’s trial early next month, it has become clear that Kenya’s government is faced with the challenge of not having a full-time and effective leadership.
Given that the ICC trials are sure to be protracted, the accused would be forced into making a choice between participating in the trial and discharging their responsibilities as leaders of Kenya’s government.
This is tension seemingly between the requirements of international justice within the framework of the court and the outcome of an electoral democratic process.
The acrimony between the AU and the ICC is immediately about this tension between ICC trials, which the defendants are required to attend regularly, and the constitutional responsibilities that they have as Kenyan leaders.
Admittedly, if these leaders are unable to discharge their responsibilities effectively due to contending demands of their trials on their time and focus, Kenya would be constrained in terms of its ability to implement the policies of the new government and to participate in international affairs.
Without the agreement of the court for the trial to continue in the absence of the accused, Mr Kenyatta and Mr Ruto may end up opting to miss their trials in The Hague. Should this happen, it would have serious consequences not only for the two as individuals, but for Kenya as well.
As far as other African governments are concerned, the greatest concern is the impossibility of guaranteeing that tomorrow, other leaders will not be dragged into the ICC process.
While the personal interest of African leaders looms large, this concern also speaks to the reality of global power politics that insulates leaders of major powers, who undertake military operations in various parts of the world, from ICC processes. It is protection to which African leaders have no access.
Although it was prominent on the agenda of AU’s summit last week, the mass withdrawal of African member states from the ICC is an unlikely outcome.
Of course, the possibility of some countries opting for withdrawal cannot be totally written off either.
• Dr Dersso, a legal scholar and analyst of African international affairs who writes on current African issues, is a senior researcher at the Institute for Security Studies, Addis Ababa