The outcome of the recent African Union (AU) Summit held in Sirte, Libya on 1-3 July 2009, under the chairmanship of President Muammar Gadaffi, came as a surprise for analysts and those who have been following the debate around the AU's position towards the International Criminal Court (ICC).
The recent Ministerial meeting of African States Parties to the Rome Statute held in Addis Ababa on 8-9 June 2009 presented recommendations that projected clear support for the ICC and for ending impunity. Only a few weeks later, the July AU Summit produced a position that has been interpreted as an about-turn on the initial support for the ICC.
For supporters of the ICC, things took a wrong turn in Sirte - the decision that emerged from the meeting relating to cooperation with the ICC is rather discouraging. The AU resolved not to cooperate with the ICC on the arrest and surrender of President Omar Al Bashir of Sudan who is wanted by the Court in connection with war crimes and crimes against humanity committed in Darfur. This decision would seem to be linked to the failure of the UN Security Council to act upon the AU's request to defer the ICC processes in Darfur. This position may represent a major blow to the Court.
What is more perplexing is that some of the recommendations from the AU Summit held in February 2009, the Ministerial meeting of African States Parties in June 2009 and the AU Summit held in July 2009 seem to be contradictory. While the June decision clearly underscored States Parties' support of the ICC, the July decision seems to affirm the opposite. There have however been reports that a few Member States were not in support of the July decision: Botswana has openly declared that the decision does not represent its position on the ICC.
Despite the fact that the July decision reiterates the commitment of African Heads of State to fight impunity and promote democracy and the rule of law in light of the Constitutive Act of the AU, the statement raises concerns over the independence of the Court. While the implications of article 98 of the Rome Statute (which in this case raises the question of whether a state can avoid cooperating with the ICC out of deference for customary international law immunities that attach to heads of state) will only be clearly determined by the ICC on a case-by-case basis, the decision not to cooperate en masse raises serious concerns over state obligations in respect of the ICC. The outcome represents a reversal of gains made towards ending impunity in Africa, and portrays a lack of commitment and support to victims of crimes against humanity, genocide and war crimes in Africa.
Given the negative outcome for the ICC of the Summit in Libya, it is indeed surprising that on the same day that the decision not to cooperate with the ICC was adopted, Kenyan officials met with the President of the ICC and agreed that if the Kenyan Parliament is unable to adopt legislation to establish a tribunal to deal with 2007 post election violence in that country, the government would refer the situation to the Court. Similarly, at the practical level, other countries have demonstrated their support for the ICC: South Africa, Kenya and Senegal have national law domesticating the Rome Statute of the ICC and others are in the process of developing legislation. The question then is how Member States that have demonstrated both political and practical support for the ICC eventually acceded to the AU July Summit decision not to cooperate with the Court.
The one promising development is that the AU and States Parties have resolved to engage available processes to raise their concerns over the ICC and the Rome Statute. In this regard, the call for a preparatory meeting before the first Review Conference of the Rome Statute scheduled to take place in Uganda in 2010, is encouraging. (The Conference is a special meeting of States Parties to review the Rome Statute and consider amendments.) However, the decision at the July Summit that all AU Member States including non-States Parties to the Rome Statute will attend the preparatory meeting, raises concerns.
The onus now is upon the African States Parties to the Rome Statute to reaffirm commitment to their treaty obligations and to prepare for the Review Conference thoroughly. Without this, African political leaders will be seen to be talking about their commitment to ending impunity without taking the concrete steps required to make this a reality.
By: Jemima Njeri Kariri, Senior Researcher, International Crime in Africa Programme, ISS Tshwane (Pretoria)