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 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.
Jemima Njeri Kariri,
Senior Researcher,
International Crime in Africa Programme, ISS Tshwane (Pretoria)
