AU Recommendations on ICC Reform Attract Limited Support at the 8th Assembly of States Parties
Since the International Criminal Court (ICC) issued an arrest warrant for President Al-Bashir of Sudan in March this year, the African Union (AU) has raised concerns about the ICC, which they say is unfairly targeting Africa and undermining peace prospects in Sudan. The AU has released a number of statements and called several meetings to discuss Africa’s response to the Court’s work in Africa.
Antoinette Louw, Jemima Njeri Kariri, and Mpumi Sibalukhulu, International Crime in Africa Programme, ISS, Pretoria
Since the International Criminal Court (ICC) issued an
arrest warrant for President Al-Bashir of Sudan in March this year,
the African Union (AU) has raised concerns about the ICC, which they
say is unfairly targeting Africa and undermining peace prospects in
Sudan. The AU has released a number of statements and called several
meetings to discuss Africa’s response to the Court’s work in Africa.
Most recently, the AU convened a ministerial meeting in Addis Ababa
on 6 November 2009 to prepare for the ICC Review Conference scheduled
to take place in Kampala in May 2010. Key recommendations were that:
- The Office of the Prosecutor should review the guidelines and
code of conduct for the exercise of prosecutorial discretion so that,
in addition to the Prosecutor’s existing duty to consider the interests
of justice when deciding to open a case, ‘factors of promoting peace’
should also be taken into account. The revised guidelines were to be
submitted to the ICC’s governing body – the Assembly of States Parties
(ASP) at its 8th session from 18-26 November 2009 in The Hague – ‘to
ensure more accountability’.
- Article 16 of the Rome Statute of the ICC be amended with respect
to Article 16 which grants the UN Security Council (UNSC) power to
defer situations before the Court for one year in the interests of
international peace and security. The proposed amendment would give the
UN General Assembly the power of deferral (under the Cold War ‘Uniting
for Peace’ resolution (377(v)/1950) in cases where the UNSC has failed
to take a decision within six months.
- On the issue of immunities for heads of state and senior
government officials, Articles 27 and 98 of the Rome Statute should be
discussed at the 8th ASP with a view to including this issue on the
agenda of the Review Conference in the session on ‘stock taking’. (This
session will reflect on the ICC’s achievements and challenges since
its inception in 2002.) The aim is for the ICC to clarify whether,
under international law, immunities of officials of non-states parties
to the ICC have been removed by the Rome Statute or not.
- With regard to the crime of aggression, which is yet to be
defined in the Rome Statute, the UNSC should not be granted exclusive
powers to decide whether aggression has been committed or not before
the ICC can exercise jurisdiction. When aggression does take place,
other competent organs of the UN (such as the International Court of
Justice or the General Assembly) could be given the power to determine
the act of aggression.
In terms of the strategy for submitting these recommendations to the
8th ASP, South Africa, Nigeria, Burundi and Tanzania were to have
sponsored the amendment to Article 16 of the Rome Statute, with the
support of other African states parties. The other recommendations were
to be ‘presented’ to the 8th ASP and African states parties should
have consulted other regional groups (of states parties) to ‘secure
consensus’ around the recommendations.
Three factors counted against the likelihood that these recommendations would be supported at the 8th ASP:
- The AU ministerial meeting recommendations are both legally and
politically contentious and so would require protracted and calculated
lobbying of other states parties to build support.
- With less than two weeks between the AU ministerial meeting and
the start of the ASP, there was never going to be enough time for the
groundwork required to ensure serious consideration of such
recommendations at a decision-making meeting of 110 states parties.
- Individual African states parties and the AU do not share the
same views about the ICC. Given that the recommendations were highly
contentious, and that time was not on their side, the fact that African
states parties failed to present a convincing and unified voice at the
8th ASP on these issues is perhaps not surprising.
Sources at the ASP reported that the AU recommendations generated
some discussion in the relevant working groups. In the end, however,
the hoped-for outcomes were not achieved: neither the Article 16
amendment nor the question of immunities for government officials have
been included on the Review Conference agenda, and concerns about
prosecutorial discretion remain unresolved. As a compromise, these
issues will be taken up in separate working groups for discussion at the
next ASP. Proposals on the crime of aggression – which has long been a
‘compulsory’ agenda item for the Review Conference – will be
discussed, although consensus on the key issues still needs to be
reached.
Many delegates at the 8th ASP were of the view that issues relating
to the functioning of the UNSC should not be discussed at the ASP or
indeed at the ICC Review Conference. As a political organ, concerns
about the UNSC’s powers in relation to the ICC should instead be taken
up as part of the UN reform agenda.
The 8th ASP aimed to finalise the agenda for the ICC Review
Conference, and decisions were taken to include the following items:
- Amendments to the Rome Statute: the crime of aggression
and elements of crimes, Article 124 of the Rome Statue, and the
amendment of Article 8.2e relating to war crimes.
- Stocktaking: cooperation between states parties and the
ICC, complementarity, victims, and universality (increasing the numbers
of countries that have ratified the Rome Statute and passed domestic
implementing legislation).
These developments at the 8th ASP suggest that if Africa is to
successfully shape the ICC, then better and more timely planning,
coordination and lobbying among African states parties, other regional
blocs and civil society organisations is needed. It is also worth
considering whether the AU is the best vehicle for organising and
communicating African states parties concerns at the ASP. Perhaps
sub-regional action could be more effective?
