An African exodus from the ICC – but what about the witnesses?

Fast forward to June 2015, when President al-Bashir was expected to attend the African Union Assembly in South Africa.
At this point, the South African Government (SA Government) was under pressure from civil society organisations to arrest President al-Bashir upon his arrival in the country in accordance with the arrest warrants. However, it declined to do so, arguing that President al-Bashir was protected from arrest due to the immunity granted to him under the Diplomatic Immunities and Privileges Act, No 37 of 2001.

The Southern Africa Litigation Centre launched urgent proceedings in the Gauteng Division of the High Court, Pretoria (High Court) seeking an order compelling the SA Government to cause the arrest of President al-Bashir and declaring the failure to do so to be in breach of the Constitution (see Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others [2015] ZAGPPHC 402; 2015 (5) SA 1 (GP)). In the midst of the procedural nightmare that ensued, the High Court issued an interim order prohibiting President al-Bashir from leaving the country before a final order was issued in the case. The following day, the High Court issued a final order in which it ordered the SA Government to take “all reasonable steps” to arrest President al-Bashir, and declared the failure to do so to be inconsistent with the Constitution. Conveniently for the SA Government, however, it transpired that President al-Bashir had left the country earlier that same day.

On 20 October 2016, South Africa delivered a formal notice of withdrawal from the Rome Statute to the United Nations (UN), and has previously called on other African states to do the same in solidarity.

Although this action by South Africa is being challenged in litigation before the High Court for being constitutionally impermissible, Burundi and Gambia have already made moves to withdraw, while Kenya, Namibia and Uganda have also indicated their intention to follow suit (although Uganda has indicated that its decision hinges on the resolution of the African Union). Stepping away from the African continent, Russia has also signaled its intention to withdraw from the Rome Statute, and Philippines has since indicated that it may follow Russia’s lead.

If this cause ultimately finds enough support with the other African states, this could cause a number of problems for the ICC, particularly in relation to its witness protection programme, the International Criminal Court Protection Programme.

Over the course of this series, we will build on the contextual foundation in this alert by establishing the current ICC witness protection framework and any extant problems within it, scrutinising potential issues that may arise as a result of any walkout, and critically considering some approaches to solving those problems. While there will be a distinct focus on the effect of an African walkout, given that Africa is the largest regional group in the ICC, it will become apparent that some of these problems may present themselves on the withdrawal of any States Party.