Reflections From The South: African Union Versus The International Criminal Court – Fight Against Injustice And Impunity
Following the adoption of the Rome Statute of the International Criminal Court on July 1998 and its entry into force on July 1, 2002 in response to the widespread incidents of armed conflict and related atrocities and the need to promote global justice and fight impunity; African states positively and quickly accepted and embraced the statute and its court. A majority of African states including leading and influential states like Nigeria, South Africa, Ghana and Kenya have ratified the Rome Statute with Tunisia being the 32nd African state and 116th in the world to do so in June 2011.
The challenges and impact of armed conflict in many parts of the African continent and the common objectives between the African Union (AU) and the International Criminal Court (ICC) in the fight against genocide, crimes against humanity, war crimes and the crime of aggression are the main reasons for the initial favorable response to the Rome Statute and the International Criminal Court by many African states. In this regard, the Constitute Act of the African Union adopted by African states in July 2000 acknowledges in its Preamble that conflicts in Africa ‘constitutes a major impediment to the socio-economic development of the continent’ whilst its operating principles as per Article 4, reject impunity and allow the African Union to ‘intervene in internal affairs of a Member State in response to incidents of war crimes, genocide and crimes against humanity.’ Interestingly, both the African Union and the Rome Statute came into operation the same month and year – July 2002!
However, relations between the AU and the ICC soon soured as the Court began to act against African leaders following the issuance by the Court of warrants of arrest and the indictment of President Bashir of the Sudan for war crimes, six Kenyan leaders including the Deputy Prime Minister of Kenya, Uhuru Kenyatta, for the 2008 post-election violence and recently, Colonel Qadhafi the Libyan leader, for war crimes.
The tensions and disputes between the AU and the International Criminal Court arose when the AU resolved on July 13, 2009 at the Thirteenth Ordinary Session of the Assembly of the African Union held in Sirte, Great Socialist People’s Libyan Arab Jamahiriya, not to cooperate with the Court in the arrest and surrender of the Sudanese president. The AU’s decision was based on its perceived impact the indictment of President Bashir by the International Criminal Court would have on the peace process pertaining to the conflict in Darfur.
In its Sixteenth Ordinary Session held in Addis Ababa, Ethiopia on January 30-31, 2011, the AU again took a stand that the decision by Chad and Kenya to host the indicted Sudanese president on July 21, 2010 and August 27, 2010 respectively and not to assist the ICC in effecting the arrest and surrender warrant against him was in pursuit of ‘peace and stability’ in the region. In the same session, the AU supported and endorsed Kenya’s request to the UN Security Council for the deferral of the ICC’s investigation and prosecutions (Article 16 of the Rome Statute of the ICC) in relation to the 2008 post election violence; citing once more, the ‘ongoing peace building and national reconciliation process’ and the need to ‘prevent the resumption of conflict and violence.’
Recently, the African Union in its 17th Summit held in Malabo, Equatorial Guinea, from June 30 to July 2, 2011 – whilst reiterating its commitment to fight impunity – once against restated its requests to the UN Security Council for proceedings by the International Criminal Court against President Bashir of Sudan and the six Kenyan leaders to be deferred. The Assembly of the Heads of State and Government of Members States of the AU also supported the position taken by Chad, Kenya and Djibouti to receive and not execute the warrant of arrest against President Bashir whilst in their respective territories. In the same vein and in response to the warrant of arrest issued by the ICC against Colonel Qadhafi, the AU decided that ‘AU Member States shall not cooperate in the execution of the arrest warrant’ and further requested the UN Security Council to defer the prosecution of the Libyan leader ‘in the interest of justice as well as peace.’
These decisions of the AU have been taken notwithstanding the fact that the International Criminal Court was responding to referrals by the UN Security Council in the case of President Bashir and Colonel Qadhafi (South Africa and Nigeria supported the UN Security Council resolution on Libya), whilst the action against the Kenyan leaders was a consequence of Kenya’s ratification of the Rome Statute in 2005.
The position taken by the African states raise several worrying concerns in relation to the commitment to fight injustice and impunity in a continent that is the most ridden and torn apart by incidents of armed conflict and the respect for international agreements and obligations by African leaders.
Commitment to Fight Injustice and Impunity
Armed conflict and its continuation in many parts of the African continent such as Somalia, Sudan, Côte d’Ivoire and the Democratic Republic of Congo (DRC), has exerted a heavy toll on life, property and economic and social development of the region. The continent and the Sub-Saharan Africa in particular, remains, according to the Global Peace Index 2011 report released in May 2011, the least peaceful region and makes up 40% of the world’s least peaceful countries with Somali being the least peaceful country in the world.
Sudan, according to a report by Oxfam – Protection of Civilians in 2010 – has the highest number of internal displaced persons (around 5 million) as a result of the ongoing conflict while there were over 15 000 conflict related incidences of rape in the Democratic Republic of Congo in 2010.
Armed conflict has also had a devastating impact on Africa’s economic development. Violence, according to the Global Peace Index 2011 report, cost the global economy more than $8.12 trillion in 2010 and this translates to a loss of around $3 trillion for Africa’s economy for its 40% share of the world’s violence and conflict. A 2007 report by Oxfam, the International Action Network on Small Arms (IANSA) and Saferworld – Africa’s missing billions: International arms flows and the cost of conflict – indicated that armed conflict costs the African continent an estimated $18 billion a year and that Algeria, Angola, Burundi, Central African Republic, Chad, Democratic Republic of Congo, Republic of Congo, Côte d’Ivoire, Djibouti, Eritrea, Ethiopia, Ghana, Guinea, Guinea-Bissau, Liberia, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Sudan and Uganda lost almost $300 billion due to armed conflict between 1990 and 2005.
To view document in detail: http://tinyurl.com/67qwzam
Failure to hold most perpetrators of the conflict in the region accountable through effective and successful criminal prosecutions and sanctions – and the resultant impunity – have contributed to much of the on-going and prolonged high levels of conflict. It is in this context and in view of the devastating impact of armed conflicts on Africa lives and economic development that the decision of African heads of State and Government in the African Union not to support and co-operate with the International Criminal Court in the Sudan, Kenya and Libya matters is perplexing and worrying.
The International Criminal Court, in terms of the Preamble of its founding statute – the Rome Statute – and Article 1 acts in a complementary manner to national criminal systems and cannot as per Article 17 of the Rome State, deal with any matter that is genuinely ‘being investigated or prosecuted’ by any state and will only intervene where the state in question is unwilling or unable to do so. In this regard, the action against the Kenyan leaders for the 2008 violence would not have happened if Kenya had genuinely investigated and prosecuted these leaders or if there was an AU mechanism to do so – justice delayed is justice denied.
The lack of an African regional criminal court has led to the intervention of the International Criminal Court in the matter pertaining to the leaders of Sudan and Libyan. African leaders should therefore be blaming themselves for this situation instead of complaining about foreign/western interferences in regional matters and perceived biasness of the International Criminal Court.
The irony and what further questions the sincerity and commitment of African heads of state and governments in the fight against injustice and impunity is the fact that the African Court on Human Rights meant to address violations of human rights has not been effective and has not received much support from the African Union. This court has only had two matters since it began operating in November 2006 – in its first case against Senegal, the court turned down an application against the former brutal leader of Chad, Hissene Habre, and in the second case, the court made a ruling against the Libyan government for human rights violations on March 25, 2011 in response to incidents of armed conflict in the country but it is not clear if Libya bothered to respond and what the AU did to ensure respect for the findings of its own court. The failure to bring into operation the new Protocol on the Statute of the African Court of Justice and Human Rights since its adoption on July 1, 2008 – which only needs 15 ratifications by African states and currently has three ratifications – is another question mark on the commitment of African leaders. However, the decision or intention to accord criminal jurisdiction to the African Court of Justice and Human Rights in order to try ‘serious international crimes committed on the Africa soil’ is a positive development that should be supported.
Respect for International Agreements
African leaders were not forced to sign and ratify the Rome Statute and did so with full knowledge of the implications and consequences of this statute and the International Criminal Court. The decision by African leaders not to cooperate with the International Criminal Court in its action against the leaders of Sudan, Libya and Kenya is contrary to the provisions of the Rome Statute the majority of African states are party and the binding provisions of the Charter of the United Nations. What is also interesting to note is that African states constitute the biggest block of countries that have ratified the Rome Statute and are now the biggest official opponents of its court – the International Criminal Court.
The Preamble of the Rome Statute states that: “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation.” This as the Preamble further provides, is “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” Article 86 of the Rome Statute in pursuant to these provisions, requires states to fully cooperate with the Court ‘in its investigation and prosecution of crimes within its jurisdiction’ and states that fail to do so may be reported to the ‘Assembly’ of States Parties (assembly of states that have ratified the statute) or to the Security Council if the Court was acting on a matter referred to it by the Council. The AU decision not to cooperate with the International Criminal Court is thus in violation of these provisions which, interestingly, are in line with those of Constitutive Act – the founding statute of the African Union!
The decision by the AU is also contrary to the provisions of the Charter of the United Nations, particularly the investigations and prosecutions occasioned by resolutions of the United Nations Security Council. Articles 2(5) and 25 of the Charter require all member states give ‘assistance in any action’ taken by the UN and to ‘accept and carry out decisions’ of the Security Council. The AU decision, regardless of whether African leaders in the AU might have genuine concerns about the interventions of the International Criminal Court in the region or not, is not in line with the provisions of Article 52(1) of the Charter which states that:
“Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.”
And in case of uncertainties or doubts in the interpretation of Article 52, the Charter of the United Nations makes it very clear that decisions and obligations of the UN prevail over those of regional bodies like the AU. Article 103 of the Charter in this context, provides that:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
What is further difficult about the AU’s position is that several African countries that supported the decision not to cooperate with the International Criminal Court have incorporated the Rome Statute into their national legal systems. South Africa for example, enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 in order to make the Rome Statute part of its national laws – the Preamble of the South African legislation explicitly commits South Africa to ‘carry out its obligations in terms’ of the Rome Statute. Article 2(6) the Constitution of Kenya, 2010, makes any treaty or convention ratified by Kenya part of its laws. This means that a number of African heads of state and government that supported the AU decision not to cooperate with the International Criminal Court acted contrary to their own national laws.
Decisions by African leaders in the AU in response to the International Criminal Court have created unnecessary tension between the UN and the African Union as a regional body and undermine necessary efforts to prevent further incidents of armed incidents in the African continent in particular. These decisions are also not in accordance with international standards and the objectives and operating principles of the Constitutive Act of the African Union. And in the case of South Africa and Kenya, these decisions are in contravention of the respective national laws of these countries.
The latest the decision of the AU not to cooperate with the International Criminal Court ironically comes during the month the global community is celebrating the International criminal justice day – 17 July – the historic day in which the Rome Statute was adopted by the global community to promote global justice and fight impunity in an attempt to prevent the devastating impacts of armed conflict.
The decision by the government of Botswana not to associate itself with the latest decision of the AU is thus commendable and should hopefully influence other African leaders to see the light and act accordingly in the interests of promoting peace and justice in the continent.
The conduct of African leaders also highlights the need for African people to hold their respective leaders accountable for decisions these leaders make or purport to make on their behalf in international and regional forum and to get more involved in activities of the African Union as provided for by the operational principles of the Constitutive Act of the African Union. It is also important that African people put pressure on their leaders to ensure that the regional court is effective and is supported by the AU and African leaders – the slow pace in the ratification of the Protocol on the Statute of the African Court of Justice and Human Rights which could also address international crimes is not a good sign.
Africa needs more commitment from its leaders and people to end armed conflict and its devastating impacts on African lives and Africa’s development. The fight against injustice and impunity is crucial in this regard- much of the conflicts in the region would probably not have happened or would have occurred at far limited scales if the perpetrators of these conflicts were aware that they will be eventually arrested and prosecuted for acts of genocide, war crimes and crimes against humanity they commit.
By Tseliso Thipanyane
Tseliso Thipanyane, independent consultant on human rights, democracy and good governance and former chief executive officer of the South African Human Rights Commission. Tseliso is Director-Editorial and Marketing at AfrobeatRadio. He can be reached at firstname.lastname@example.org.