When African States Walk Away from the ICC, Victims Pay the Highest Price

The formal request by Niger’s military government to withdraw from the International Criminal Court (ICC) this month should prompt sober reflection — what happens to victims of atrocities in Niger, and indeed across ICC member states, when governments abandon the world’s court of last resort?

Niger’s withdrawal, which will take effect one year after notification under Article 127 of the Rome Statute, will make it only the third country in the world—after Burundi and the Philippines—to complete the process of leaving the ICC. The timing is significant. Niger is currently under military rule following the July 2023 coup and now joins Mali and Burkina Faso, fellow members of the Alliance of Sahel States, all under military rule and all facing allegations of serious human rights abuses. Mali and Burkina Faso have also announced their intention to withdraw from the ICC, though they have not yet submitted formal requests to do so.

Retreat as a Shield, Victims as the Cost

It is striking that nearly every state that has withdrawn from, or announced plans to withdraw from the ICC has done so during periods of democratic decline, authoritarian consolidation, or widespread allegations of human rights violations. In such contexts, withdrawal risks becoming not merely a legal decision but a political shield against external scrutiny. Niger’s decision, like those of Burundi and the Philippines before it, reflects this troubling pattern. Yet the consequences of withdrawal are not borne by governments or political elites, who often seek to insulate themselves from scrutiny. They fall instead on ordinary victims, whose prospects for justice become increasingly limited when domestic institutions fail and the ICC is no longer available as a court of last resort.

The Human Face of International Justice

For victims, the ICC is more than a court—it is often the only institutional recognition that their suffering matters. In northern Uganda, survivors of the Lord’s Resistance Army saw Dominic Ongwen convicted for atrocities committed as both victim and perpetrator. The court also ordered him to pay about $56 million in reparations to the victims. In Timbuktu, communities devastated by the destruction of cultural heritage witnessed Ahmad Al Faqi Al Mahdi held accountable and ordered to provide reparations of about $3million. In the Democratic Republic of Congo, victims of armed conflict have participated directly in proceedings that acknowledged their harm.

Through Article 75 and the Trust Fund for Victims, the ICC has also facilitated reparations, rehabilitation, and support services for survivors of atrocity crimes. When states withdraw, they do not simply reduce institutional reach—they risk weakening one of the few global mechanisms that recognizes victims as central participants in justice.

The Cost of Withdrawal
When states walk away from the ICC, it is not political leaders or military commanders who bear the greatest cost. It is victims: the mother who lost her children in a massacre; the survivor of sexual violence in conflict; the child forced into armed groups; and communities displaced for decades without redress.

History offers a consistent warning: when accountability mechanisms weaken, impunity expands; when impunity expands, violence is more likely to recur. The measure of any justice system is not its ability to protect the powerful, but its capacity to serve the powerless.

For many victims across Africa and beyond, the ICC remains—imperfect, contested, and evolving—one of the few institutions attempting to ensure that the gravest crimes do not go unanswered. That promise should not be abandoned lightly.

The ICC: A Court of Last Resort
The ICC was established by the Rome Statute in 2002 and prosecutes individuals—not states—for genocide, crimes against humanity, war crimes, and aggression, as defined in Articles 5–8 of the Rome Statute. Its jurisdiction is guided by the principle of complementarity under Article 17, meaning the Court may intervene only when national systems are unable or unwilling to genuinely investigate or prosecute these crimes. For victims, the ICC often represents the final available avenue for accountability when domestic justice systems fail or are compromised.

Evidence, Procedure, and Due Process
The ICC is frequently misunderstood as a politically driven institution, but its procedures are legally structured and multilayered. Every situation begins with a preliminary examination under Article 15, where the Prosecutor assesses whether there is a reasonable basis to proceed. If satisfied, the Prosecutor may open an investigation, subject to judicial oversight.

Arrest warrants or summonses must then be authorized by the Pre‑Trial Chamber, ensuring judicial control over prosecutorial discretion. Only after charges are confirmed does a case proceed to trial before a full chamber of judges. This framework is designed to guarantee that prosecutions are evidence‑based rather than politically motivated. The Court’s jurisprudence reflects this standard. For example, former Ivorian President Laurent Gbagbo and former Youth Minister Charles Blé Goudé were acquitted in January 2019 after judges found that the prosecution’s evidence did not meet the required burden of proof—decisions later upheld on appeal in March 2021. These outcomes underscore that the ICC is a court of law, not a conviction mechanism, and that its legitimacy rests on adherence to due process and evidentiary rigor.

Joining and Withdrawing from the ICC
Joining the ICC requires a state to sign and ratify the Rome Statute and deposit its instrument of ratification with the United Nations Secretary‑General, as provided in Articles 125–126. This process signals a commitment to international criminal justice and binds the state to cooperate with the Court’s jurisdiction over the gravest crimes. Withdrawal, by contrast, is governed by Article 127(1), which allows a State Party to leave the Court through written notification, taking effect one year later. Importantly, Article 127(2) stipulates that withdrawal does not affect obligations already incurred, nor does it halt ongoing investigations or proceedings related to crimes committed while the state was still a member.

The implications are significant. While withdrawal may shield governments from future scrutiny, it cannot erase accountability for past crimes. However, once a state withdraws, future victims may lose access to the ICC if domestic institutions fail to deliver justice. In such cases, the retreat from international accountability closes one of the few remaining doors through which victims might seek recognition and redress.

Africa’s Complex Relationship with the ICC

Critics often argue that the ICC disproportionately targets Africa. The record, however, is more nuanced. Several African situations were referred to the Court by the states themselves under Article 14, including Uganda (2004); Mali (2012); the Democratic Republic of Congo (2004); Central African Republic (2004 and 2014), and Côte d'Ivoire (2015), although Côte d'Ivoire had accepted ICC jurisdiction in 2003 and became a State Party in 2013. Other situations, such as Darfur and Libya, were referred by the UN Security Council under Article 13(b), in 2005 and 2011 respectively with African states participating in the vote or abstaining rather than opposing.

The Kenya situation – where both President Uhuru Kenyatta and Deputy President William Ruto were indicted by the ICC and is often cited in debates on selectivity, was initiated by the Prosecutor proprio motu following a preliminary examination of post‑election violence, based on concerns that domestic accountability mechanisms were insufficiently robust at the time. Gabon also requested a preliminary examination in 2016. These facts complicate the narrative of external imposition. They show that African states have not been passive targets but active participants in ICC processes. However, they do not fully resolve legitimate concerns raised by African institutions, particularly the African Union, regarding unequal global power dynamics, and the influence of the UN Security Council’s referral and deferral powers.

A fair assessment must therefore hold both truths: African states have actively engaged the ICC, while structural and political factors continue to shape perceptions of imbalance.

Comparative Lessons from Other Withdrawals

The ICC’s reach extends well beyond Africa. For example, the Philippines formally withdrew in 2019, yet under Article 127(2) the Court retained jurisdiction over crimes committed while the country was still a member. This provision has enabled investigations into alleged abuses during the “war on drugs” campaign. Proceedings against former President Rodrigo Duterte have advanced through judicial review, with his trial currently scheduled to begin on November 30, 2026.

Burundi’s withdrawal in 2017 further illustrates the limits of exit. The ICC opened an investigation during the withdrawal period, demonstrating that timing is critical: withdrawal cannot shield individuals from accountability for crimes already under examination.

These cases show that withdrawal narrows, but does not erase, the reach of international justice. They also underscore that the consequences of retreat are borne by victims, who may lose access to future accountability mechanisms even as past crimes remain subject to scrutiny.

Power and the Limits of Jurisdiction
It is often argued that powerful states such as the United States, Russia, China, and India are effectively insulated from ICC scrutiny because they have not ratified the Rome Statute. This claim is only partly accurate. Under Article 12(2)(a), the ICC may exercise jurisdiction when alleged crimes occur on the territory of a State Party, even if the accused is a national of a non‑member state. In addition, Article 13(b) allows the UN Security Council to refer situations regardless of nationality.

The more significant constraint is not legal design but political reality—particularly the veto power of permanent members of the Security Council, which can block referrals or deferrals and limit enforcement. This imbalance highlights the uneven global landscape of international justice: while weaker states remain vulnerable to scrutiny, powerful states can often avoid accountability through political influence rather than legal immunity.

Africa and ICC Reform
The African critique of the ICC is not without foundation. Concerns include perceived selectivity in case selection, dependence on Security Council referrals, and the disproportionate focus on African situations during the Court's early years. These criticisms have been voiced consistently by African governments and institutions, particularly the African Union, which has argued that the Court's operations reflect broader inequalities in the international system.

At the same time, the ICC has expanded its reach beyond Africa. Investigations in Ukraine, Georgia, Afghanistan, and Palestine demonstrate that the Court's mandate is not confined to one region. It has also delivered landmark convictions and developed a victim participation framework that remains unique in international criminal law, ensuring that survivors are not merely witnesses but active participants in the pursuit of justice.

The debate, therefore, should not be framed as a choice between African sovereignty and international justice, nor between defending and dismantling the ICC. The real challenge is how to reform the Court so that it becomes more universal, more equitable, and more effective in delivering accountability. Reform proposals—many advanced by African legal and political institutions—focus on improving geographic balance, reducing political influence in referrals, strengthening cooperation and enforcement mechanisms, and ensuring a more consistent application of international justice.

A constructive path forward lies in reform rather than retreat. Africa, having both engaged the Court and borne the brunt of criticisms against it, is uniquely positioned to lead this conversation. By advocating reforms that address legitimate concerns while preserving the Court's victim-centered mandate, African states can help shape a stronger and fairer system of international justice. The true measure of leadership is not how effectively governments shield themselves from scrutiny, but how steadfastly they protect the powerless and uphold accountability. Reform, not retreat, must be the path forward—because when international justice recedes, it is victims who pay the highest price.

The author, William Nyarko, is the Executive Director of the Africa Centre for International Law and Accountability (ACILA).

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