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Confusion over the African Union and the International Criminal Court

Jemima Njeri Kariri, a Senior Researcher in the International Crime in Africa Programme at the Institute for Security Studies, speaks to Polity's Amy Witherden on the African Union's ‘about-turn' in its dealings with the International Criminal Court. Camerawork: Darlene Creamer and Shane Williams; Editing: Darlene Creamer.

16th July 2009


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In this video clip, Jemima Njeri Kariri, a Senior Researcher in the International Crime in Africa Programme at the Institute for Security Studies, speaks to Polity's Amy Witherden on the African Union's ‘about-turn' in its dealings with the International Criminal Court.

Below are the original opinion pieces on which this discussion was based.


June 30, 2009: AU Reiterates Commitment to the ICC

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.

July 14, 2009: AU's Decision in Sirte Discourages ICC Supporters

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 Pretoria Office




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