The African Union calls it a "new norm" of international law: an emerging African strategy to weaken the International Criminal Court by threatening a mass withdrawal by dozens of countries.
The strategy was kept secret at an African Union summit this week, but it was adopted in a closed-door session without a vote. A leaked report, obtained by The Globe and Mail, shows that the strategy aims to give immunity to African heads of state, exempting them from prosecution as long as they remain in office.
The document says a mass withdrawal by African countries would be a "new norm" that would strengthen customary and domestic law – both of which traditionally give immunity to heads of state in Africa. The strategy would be a direct attack on the court's belief that it has the right to prosecute heads of state for war crimes or genocide, as it has done with the presidents of Sudan and Kenya in recent years.
The new strategy is unlikely to succeed, since many African countries are unwilling to quit the court, which prosecutes war crimes and crimes against humanity. The summit's decision is not legally binding, and much of its rhetoric is vague and unclear. But it's the latest noisy shot across the bow of the court, escalating the political pressure against it.
Many African leaders have complained that the ICC is biased against Africa. Some have even accused it of racism and imperialism at the behest of Western powers, which themselves are not subject to the court because they haven't joined it.
Three African countries – South Africa, Burundi and Gambia – announced last year that they planned to leave the ICC, and several others have threatened to do so. The new strategy would go much further, pushing for a "collective withdrawal" by a large group of African nations.
More than a quarter of the court's 124 member states are African, so a mass withdrawal would be a severe blow. Canada, one of the key leaders in creating the court in the late 1990s, has been campaigning to save it.
Kenya has led the campaign against the court, but its foreign minister lost a closely fought bid to win the leadership of the African Union this week. Instead, the foreign minister of Chad, a supporter of the court, won the election to become head of the African Union's permanent commission.
South Africa, the biggest African country to announce plans to quit the ICC last year, forged ahead this week with a parliamentary bill to complete its withdrawal.
In a speech to a parliamentary committee, Justice Minister Michael Masutha insisted that heads of state must have immunity from prosecution.
"If you indict a sitting president of another country, you are effectively indicting that state itself," he said.
In 2015, South Africa allowed Sudan's President Omar al-Bashir to attend an African Union summit in Johannesburg, and then allowed him to leave freely, despite a South African court order that banned him from leaving while the court considered a motion to have him detained under an ICC arrest warrant for war crimes and genocide.
In that incident, foreign powers were using South Africa as a "guinea pig" for an attempt to impose "regime change" on Sudan, Mr. Masutha said this week.
In its confidential strategy document, the African Union acknowledges that international law does not recognize the concept of "collective withdrawal" but it suggested that there is a "potential emergence" of this "new norm."
More than a dozen African countries, however, have issued public statements of support for the ICC in recent months. Nigeria, for example, said the court is a valuable way to hold leaders accountable.
At the closed-door debate at the African summit this week, the leaders of eight countries issued reservations about a mass withdrawal strategy, according to Elise Keppler, associate director of the international justice program at Human Rights Watch. "Such reservations are an important indication of lack of backing for the decision," she said.
"The mobilization of African states since October in support of the ICC is welcome news for victims and advocates across Africa, who have repeatedly highlighted the ICC's importance as a court of last resort when national courts are unable or unwilling to prosecute atrocities."