STATE DEFIANCE, TREATY WITHDRAWALS AND THE RESURGENCE OF AFRICAN SOVEREIGN EQUALITY CLAIMS: HISTORICISING THE 2016 AU-ICC COLLECTIVE WITHDRAWAL STRATEGY

Abstract

At its January and July 2016 Assembly, the AU, continuing its long held call for African states to withdraw from the Rome Statute, adopted a decision indicating its most operational intent to so withdraw. In October 2016, Burundi, South Africa and The Gambia made much publicised steps towards withdrawing from the Statute in quick succession.

It is not unusual for states to threaten or use withdrawal from international agreements to express discontent with the obligations of the legal regime created by such agreements.

This chapter attempts to historicise the AU collective withdrawal threats through a three part analysis. First, using a comprehensive review of relevant AU Assembly decisions between 2009 and 2016, we will consider how prominent collective withdrawal threats have been in the larger AU Assembly discourse on the three international criminal justice processes that have been the subject of Assembly attention, that is, the International Criminal Court (ICC), the abuse of the principle of universal jurisdiction and the Hissène Habré case. The key finding here is that the larger AU discourse does not betray a focus on withdrawal. Rather, the main AU Assembly concern seems to be an effort to fight a perceived disregard by the United Nations Security Council (UNSC) for African sovereign equality.

Second, we will review the history of treaty withdrawals, dating from the League of Nations in the 1920s, in order to understand the pattern of state defiance of influential but politically inexpedient international obligations, before both international organisations and international jurisdictions.

Third, we will return to the perceived disregard for African sovereign equality and briefly review African state practice in this regard. Historicising the defiant acts of states should allow us to place the AU collective withdrawal threats in context and see that the current challenges to the jurisdictional authority of the ICC are not altogether unknown to international jurisdictions and may not constitute an existential crisis in international law, but rather, are part of the usual ‘incoherent’ development of international law