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Withdrawal from the International Criminal Court: Does Africa have an alternative?

Michelle Nel, Vukile Ezrom Sibiya

Abstract


After a century in the making, the International Criminal Court (ICC) came into existence in 2002 with an overwhelming number of states ratifying the Rome Statute. With 34 signatories, Africa is the largest contributor in the Assembly of State Parties, yet Africa has become its severest critic. As threats of withdrawal become a reality with the imminent withdrawal of Burundi, this article considers the question of whether Africa has an alternative solution. With an African Union (AU) Constitutive Act purporting a commitment to combating impunity and promoting democracy, rule of law and good governance, one would expect the AU to be ready to pick up the reins. To end impunity and hold perpetrators accountable, finding an alternative for the lacuna left in the absence of the ICC has never been more pressing. The recent adoption of a strategy by African countries for a mass withdrawal has pushed the matter to the fore. This article discusses the feasibility of amnesty, domestic and local trials, or an African regional court as viable alternatives to ICC jurisdiction and prosecution. The creation of an African regional court in the guise of the African Court of Justice and Human Right (ACJHR) seems the preferred solution, enabled by the Malabo Protocol extending its jurisdiction to international and transnational crimes. Slow ratification does not bode well for the proposed ACJHR and its extended jurisdiction. Time is of the essence and whatever solution is found will necessitate decisive action by the AU.

Keywords: ICC, African Union, African Court of Justice and Human Rights, impunity, amnesty, regional courts




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