The decisions of the recent 14th African Union (AU) summit held in Addis Ababa from 25 January - 2 February 2010 on the International Criminal Court (ICC) are encouraging, considering the AU's overt resistance to the ICC in 2009. At the 13th AU summit in July 2009, member states resolved not to cooperate with the ICC in the arrest of President Omar Al Bashir of Sudan for war crimes and crimes against humanity allegedly committed in Darfur. This decision - widely regarded as proof of Africa's resistance to the ICC - is not referred to in the 14th summit decisions. Instead, the recent decision calls for African states parties to the ICC's Rome Statute to become more active in relevant ICC forums. As such, the 14th summit decision suggests that the negative undertones previously expressed in reference to the Court and its work in Africa have been replaced by a more constructive approach. This is an encouraging development, particularly in light of the ICC's first Review Conference which will be hosted in Africa (Kampala) from 31 May - 11 June 2010.
The 14th summit took cognisance of the Report of the AU Ministerial Meeting on the Rome Statute of the ICC held in Addis Ababa on 6 November 2009 to prepare for the 8th ICC Assembly of State Parties (ASP) later that month. The ASP would confirm the agenda for the Review Conference, and to this end, the AU Ministerial Meeting put forward the following recommendations to the ASP for inclusion on the agenda of the Review Conference:
1. Proposal for amendment to Article 16 of the Rome Statute (which gives the UN Security Council the power to defer ICC cases for one year):
2. Proposal for the retention of Article 13 as is (which gives the UN Security Council the power to refer situations to the ICC for investigation):
3. Procedural issues: Guidelines for the exercise of prosecutorial discretion by the ICC Prosecutor;
4. Immunities of officials whose states are not parties to the Rome Statute: the relationship between article 27 and 98; and
5. Proposals regarding the crime of aggression.
6. While some of these proposals were discussed at the ASP, none were accepted as agenda items for the Review Conference. Resolution ICC-ASP/8/Res.6 on the Review Conference did nevertheless establish a working group of the ASP to consider, as from its 9th session later this year, amendments to the Rome Statute including the AU's proposed article 16 amendment.
Despite the above outcome, the 14th summit decision reflects a well thought out effort by the AU member states to identify pragmatic, constructive recourse. This is significant in the face of the ASP's decision to establish a working group to consider the proposed article 16 amendment, among others. It is in light of this that the AU has reiterated its request to the UN Security Council to defer the case against Al Bashir in order to not obstruct ongoing peace processes in Sudan, including the implementation of the recommendations by the High Level Panel on Darfur chaired by the former South African President, Thabo Mbeki. The Panel had the mandate to examine the Darfur situation and make recommendations on how best the issues of accountability and combating impunity; and reconciliation and healing on the other hand could be effectively addressed.
The AU's 14th summit decision also requests African states parties to raise the issue of the immunity of officials whose states are not party to the Statute (articles 27 and 98) under the topic of ‘cooperation' during the stocktaking part of the Review Conference and also with the New York working group of the ASP.
Importantly, the AU emphasized the need for African States Parties to ‘speak with one voice to ensure that the interests of Africa are safeguarded' and urged African States Parties to follow-up [presumably at the 9th ICC ASP] on the concerns raised by AU member states. This indicates that African states acknowledge the importance of engaging with the processes of the Court in order to further their cause, as well as the need to comply with ICC guidelines and to engage with relevant developments. In this regard, the AU correctly places responsibility for action on African states parties, with its request to the African Group in New York and the African members of the Bureau of the ASP to the Rome Statute, to follow-up on the implementation of the AU decision taken at the 14th summit.
Considering the important role that African states parties must play in improving and enabling the work of the ICC on the continent, it may become necessary to establish a working group on international criminal justice and the ICC for relevant ambassadors in Addis Ababa. This working group could engage with these matters from Africa, and interact periodically with counterparts in The Hague and with the African Group in New York. Developments at the 8th ASP indicate that better coordination and information sharing among African states parties' delegates at future ASPs is essential: when South Africa (on behalf of the AU) introduced the proposal that an amendment to article 16 be included on the Review Conference agenda, only two African states supported it. This may suggest either that the other African states do not back the AU's article 16 proposal, or more likely, that African delegates were not properly briefed and prepared with regard to the AU proposals for the Review Conference.
The 14th AU summit represents positive developments for international criminal justice on the continent. The decision represents a willingness to work with, rather than sideline the ICC. It also suggests that the AU wants the ICC to be seen to work for the African continent. This is significant since all situations currently before the Court are from Africa, with the possibility of further ICC work on the continent in Kenya and Guinea.
With this welcome step in the right direction, it is now incumbent on African states parties and civil society organizations to prepare themselves for effective engagement on these issues not only at the Review Conference but also at upcoming ASP sessions. State parties could initiate active consultations at regional and sub-regional levels in order to build consensus and cultivate durable solutions relating to the work of the ICC. Civil society has an important role to play in this process, by raising awareness around the ICC, lobbying their governments to participate constructively and offering support in the form of training and technical assistance to enable the investigation and prosecution of international crimes in their own countries.
Written by: Jemima N Kariri and Nompumelelo Sibalukhulu, International Crime in Africa Programme (ICAP), Pretoria