The misgivings of some African states about the International Criminal Court (ICC), more especially the concentration of the court’s work on the African continent, are well known. However with the recent interest expressed by Egypt and Tunisia in joining the ICC, along with Côte d’Ivoire’s request for an ICC investigation into the post election violence in that country and the UN Security Council’s unanimous vote to refer Libya to the ICC, the African Union (AU) may have to nuance its assertions on the ICC at its 17th Ordinary Session at the level of Heads of State and Government on 30 June – 1 July.

The challenge of impunity on the continent is real. It was for this reason that many African states rallied behind the creation of the ICC whose mandate is to end impunity for gross crimes. Africa’s commitment to justice is evident. The continent remains one of the largest regional blocs in the ICC. The fact that the majority of the African situations before the court were referred by the states themselves not only attests to the weaknesses of some national criminal justice systems but to the commitment of the states’ concerned to fight impunity for gross crimes.

Although there is no shortage of ICC detractors on the continent, support for the court is equally evident. It would be ill advised for African states, and in particular those that are members of the ICC, to turn a blind eye to the latter at the AU summit.

Pictured on the streets of Tunis and Cairo, forced to flee for their lives in Abidjan and Tripoli, and surveyed in Kenya – masses of ordinary Africans who have suffered under the excesses of dictatorial rule and corrupt governments are desirous of justice. Today they look to the ICC to bring their leaders to account.

The call for ‘African solutions to African problems’ in this instance is losing its appeal. Although the AU has attempted to engage diplomatically to resolve the conflicts in some of these crisis situations by nominating various Heads of State to act as mediators, these efforts have not always yielded concrete results. In light of this, the AU’s investigation into extending criminal jurisdiction to the African Court of Justice and Human Rights should not be touted as a substitute for the role of the ICC on the continent. Where states are unable or unwilling to investigate and prosecute gross crimes, the ICC can, in many instances, assume jurisdiction over these crimes.

Blanket declarations of non-cooperation with the ICC are not useful and invariably work against the AU’s objective of establishing sustainable peace, preventing conflict and ending impunity on the continent. It is important that the AU summit takes clear decisions in support of the ICC.

Some commentators have argued that the ICC’s intervention, especially its practice of issuing warrants for sitting Heads of State, emboldens leaders embroiled in civic conflicts to resist conciliatory efforts. However, the buffer provided by some AU summit decisions on the ICC can be said to encourage African leaders to believe they can undermine the international rule of law with impunity. Kenya, Chad and Djibouti – all ICC state parties – flouted their international obligations by hosting Sudanese President Omer Hassan Al-Bashir who is wanted by the ICC. These states hid behind AU decisions instructing member states not to cooperate with the ICC in the arrest and surrender of Bashir.

Many African leaders have argued that the arrest of Bashir would rob the Darfur peace process of a key interlocutor. However, since the ICC warrant for Bashir was issued in 2009, the Sudanese leader has evaded arrest and remained in control of his country – and the Darfur peace talks have yet to produce the long awaited peace document.

Not discounting concerns about the negative consequences of pursuing justice in situations of ongoing conflict, there is also the possibility of positive consequences for peace. These may include minimising the number of casualties and delegitimising a dictator, as has been the case in Libya recently. Such positive consequences of pursuing justice may in some instances expedite the establishment of peace. Although the impact will differ case by case, the pursuit of justice is right in the end, international justice can, as peacekeeping and international relations expert David Bosco put it, ‘serve as a modest deterrent and will provide means other than violence for responding to atrocities’.

As the AU summit starts, member states should consider the views of 125 civil society organisations working on human rights and justice issues from across Africa. In a public statement entitled ‘Observations and Recommendations on the International Criminal Court and the African Union in advance of the 17th African Union Summit’, these organisations call on African states to:

* Take clear positions in support of the ICC at AU summits
* Pursue justice for the serious international crimes that have been committed in Darfur and Kenya
* Direct concerns about AU deferral requests of ICC situations to the Security Council
* Address concerns regarding expansion of the African Court’s jurisdiction to include international crimes
* Ensure cooperation with the ICC in the prosecution of serious crimes committed in Libya
* Uphold ICC state party obligations vis-à-vis visits by persons subject to ICC arrest warrants
* Ensure the selection of the most qualified candidate as the next ICC prosecutor through a fair and merit-based process.

Africa still needs the ICC and remains deeply invested in the international criminal justice project. It would therefore be wise for AU member states to pursue a more positive course towards engagement with the ICC moving forward.

Written by Nompumelelo Sibalukhulu, Junior Researcher, International Crime in Africa Programme, ISS Pretoria Office