There is no doubt that international criminal justice as it relates to the International Criminal Court (ICC) has taken center stage within the media and at various forums in the last year. This is so especially following the issuing of the warrant of arrest for President Al Bashir of Sudan. The warrant of arrest was not received well in many quarters including some African leaders and commentators. The Al Bashir arrest warrant seen within the broader context of the ICC's work in Africa has led some to conclude that the ICC is ‘targeting Africans for political reasons'.
In its declaration on 3 February 2009, The African Union Assembly called for a meeting of the 30 African States Parties to the Rome Statute to discuss the Court's work in Africa. This meeting, eventually held on 8 and 9 June 2009, could not have come at a more strategic time given the developments. It was attended by South Africa, Benin, Botswana, Burkina Faso, Burundi, Congo, Djibouti, Gabon, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Uganda, Senegal, Sierra Leone, Tanzania, Chad and Zambia. States not party to the Rome Statute were barred from the meeting after discussions among parties.
This meeting took place amid a lot of anxiety on the future of the Court in Africa, with fears of massive de-ratification by member states. This speculation however was proven wrong. The outcome of the AU meeting was encouraging. The Member States reiterated their unflinching commitment to fighting impunity on the continent as demonstrated by the number of African member states from Africa (30 out of 108) that are parties to the Rome Statue of the ICC.
The States Parties adopted six recommendations. The first reiterated the continent's commitment to rule of law and the fight against impunity.
The second recommendation revisited an earlier decision by the AU Assembly to inquire into vesting criminal mandate in the African Court. The June meeting noted that process should go forward. It is worth noting that although the AU Commission is yet to report back, mandating the African Court to try international crimes would call for the strengthening and capacitating of the African court.
The third recommendation related to the monitoring of legal proceedings at the ICC by affected parties with regard to the appeals proceedings and immunities. This is important because some of the statements made about the ICC's process are made without proper knowledge and understanding of proceedings at the Court.
The fourth recommendation, called for capacity building to strengthen the legal capacity of Member States to prosecute these crimes.
The fifth recommendation proposed the convening a meeting of African States Parties to prepare for the Review Conference scheduled for 2010 in Kampala, which should also discuss issues relating to immunities of officials of non-States Parties and the power of the UNSC to refer and postpone cases at the Review Conference.
The final recommendation reaffirmed the importance of application of article 16 of the Rome Statute by the UN Security Council in postponement of the proceedings against President Al-Bashir. States expressed concern that issuing of the warrant of arrest for President Bashir, was detrimental to the gains made towards peace in Sudan.
Other recommendations over which consensus was not reached include the conduct of the Prosecutor, mass withdrawal from the ICC, and collective decision regarding the deferral request. These three issues were seen as political in nature and were not discussed. Most of the African State Parties present were keen to focus on legal recommendations in order to avoid getting embroiled in political issues.
To this end, it was found necessary to seek a complementary relationship between peace and justice, and the proposal to defer the warrant of arrest in line with Article 16 of the Statute still stands among Member States.
Furthermore, it was noted that the AU had made progress towards the operationalization of the High Level Panel on Darfur by appointing former South African President Thabo Mbeki to conduct an in-depth assessment of the situation, review measures taken by the Sudanese authorities to address human rights and international humanitarian law violations and propose or recommend legal and political processes relevant to peace, justice reconciliation and compensation of victims. As such, a concerted effort from the AU and the international community to provide further support to the implementation of the Comprehensive Peace Agreement (CPA) is necessary.
In conclusion the AU member states are still supportive of the ICC, but realize that there is need for a coordinated cooperative effort between the two institutions. However, it falls upon both institutions to make concerted efforts towards cooperation, which would facilitate the work of the Court and advance the regional body's commitment to fighting impunity and to achieving international justice for victims of crimes against humanity, war crimes and genocide. It is necessary to fast track the request by the ICC to open a liaison office within the AU, and the signing of an agreement between the two institutions which has been pending for years now. The court should also be seen to operate in a way that it is not partisan. This can only be achieved through proper outreach activities and engagement with the AU and in particular the States Parties. Enhanced outreach activities for the Court are inevitable if it has to further its momentum in Africa.
Important to note from the AU meeting is the need for capacity building at the national and regional levels, mainly for those member states that have ratified the statute and do not have national legislation. For those member states that have already enacted such legislation, capacity building is of essence. Civil society and other experts can play a pivotal role in providing such technical capacity. For those states that have not ratified the statute, it is imperative that pre-ratification activities are organized through ICC support, in order to promote complete appreciation of the statute.
The upcoming review conference to be held in Uganda is an important opportunity for member states to provide input to the statute and the ICC as a whole and to address some of their concerns. Civil society can also support various initiatives at the national and regional level in preparation for this review conference.
By: Jemima Njeri Kariri, Senior Researcher, International Crime in Africa Programme, ISS Pretoria Office