Sudanese President Omar al-Bashir’s presence at the African Union (AU) Summit in Johannesburg on 14 and 15 June despite the International Criminal Court (ICC) charges against him has many longer-term implications. The decision by the South African government to allow al-Bashir to attend was in defiance of South Africa’s obligations under the Rome Statute and a court order preventing his departure from the country on 15 June.
At the 25th AU Summit, the AU Assembly reaffirmed its position on the ICC. In particular, in its final ‘Decisions, declarations and resolutions’, it called for the suspension of charges against al-Bashir; for the United Nations Security Council to withdraw the referral case in Sudan; and for the suspension or termination of charges against Kenyan Deputy President William Ruto until the African concerns about and proposals for amendments to the Rome Statute are considered.
Particularly relevant among those proposed amendments is Namibia’s push to amend Article 27 of the Rome Statute, which specifies that an official capacity, such as head of state, shall in no case exempt a person from criminal responsibility under the statute.
The ICC is losing the battle to maintain its legitimacy in the eyes of African leaders
The debate around al-Bashir once again puts the AU in a difficult position. It has repeatedly called for an end to impunity on the continent; in fact, ‘condemnation and rejection of impunity’ is a principle enshrined in the AU Constitutive Act. But without the ICC, is there any other body capable of holding people to account for international crimes?
The dual role of international justice
There will certainly be ramifications for South Africa following its decision on al-Bashir, especially as the country re-evaluates the strained relationship between its judicial and executive branches of government. There will also be ramifications for the ICC, which is losing the battle to maintain its legitimacy in the eyes of African leaders. And there will be ramifications for al-Bashir, who appears to have been granted de facto immunity from prosecution, on the African continent at least.
These are all significant. Even more significant, however, are the broader questions around the future of international justice in Africa and, crucially, whether the precedent set by the treatment of al-Bashir will have an impact on security issues on the continent.
Overlooked in much of the debate so far is that international justice, in whatever form it takes, serves a dual role. It is not only about providing justice to the victims of war crimes and other atrocities; it is also meant to act as a deterrent to others who might contemplate similar acts. Immunity of any description defeats this purpose.
To what extent has the al-Bashir incident degraded the ICC’s capacity to act as a deterrent in Africa?
‘By its very nature immunity prevents accountability for wrongdoing. There is an accepted treaty norm and practice of states that there is no immunity for international crimes. Any form of shielding from accountability that al-Bashir or any other African leader has enjoyed sends the wrong message that in the international criminal justice system, there are some animals on the farm that are more equal than others, excluding them from accountability for international crimes that they are alleged to have committed,’ said Allan Ngari, a senior researcher with the Institute for Security Studies.
In other words, the role of organisations such as the ICC, or the mooted African Court of Justice and Human Rights, is both to atone for past offences and to prevent future ones. As far as peace and security is concerned, it is the second factor that is most important. This raises the questions: To what extent has the al-Bashir incident degraded the ICC’s capacity to act as a deterrent in Africa? And what does this mean for peace and security on the continent?
Admittedly, this deterrence effect is largely untested. ‘It is a recognised theory in criminal law that retribution does contribute to deterrence of crime generally. I am, however, not aware of empirical research specifically on international crime to this effect. Nevertheless, appropriate penalties for international crimes administered by properly constituted courts of law send clear messages that these crimes will not go unaccounted for,’ said Ngari.
The ICC as a deterrent
Situation-specific evidence suggests that the ICC has already influenced behaviour. Steve Lamony, the Senior Advisor for AU, UN and Africa situations at the Coalition for the International Criminal Court, pointed to two examples where the threat of court proceedings has had a demonstrable effect.
Allowing accountability to fall by the wayside will promote a culture of impunity
The first was a reduction in the use of child soldiers in the wake of the Thomas Lubanga verdict (in 2012, Lubanga was sentenced to 14 years’ imprisonment for using children as young as 11 in his militia group in the Democratic Republic of the Congo [DRC]). The second was the lack of post-election violence in Kenya in 2012. Lamony attributes this to the indictment of Uhuru Kenyatta, Ruto and others in the wake of the 2007/2008 post-election violence, which showed that such actions had serious consequences.
Lamony worried that even though it was far too soon to make any conclusions about the ICC’s effectiveness as a deterrent, removing it entirely would encourage impunity. ‘Allowing accountability to fall by the wayside will promote a culture of impunity; it is worth remembering that African states joined the ICC because they did not want a repeat of the Rwandan genocide. Already in Sudan, suspects wanted by the ICC remain at large and continue to commit crimes in Darfur and other places,’ he said.
Whatever deterrence factor the ICC does offer, it is in the process of being rejected by a majority of African leaders. At the AU Summit in Johannesburg, African leaders – al-Bashir among them – reaffirmed their commitment to reforming the ICC and called for the termination or suspension of the charges against al-Bashir and Ruto. On the sidelines, several states expressed their intention to withdraw from the Rome Statute entirely, among them South Africa – previously one of the court’s most powerful allies.
Several states expressed their intention to withdraw from the Rome Statute entirely
While the ICC does still have some supporters on the continent – most notably Botswana, which called on all signatories to the Rome Statute to cooperate with the ICC; and the DRC, which, just days after the summit concluded, passed new legislation incorporating the Rome Statute into national law and strengthening cooperation with the ICC – these have become the exception rather than the rule.
African Court of Justice still a long way off
The AU is making important strides towards the creation of the African Court of Justice and Human Rights. This continental court would have three chambers, one of which would have jurisdiction over international crimes. When this is established, it should be able to both dispense justice and act as a deterrent.
The AU is making important strides towards the creation of the African Court of Justice and Human Rights
However, the establishment of this court remains a long way off. ‘The criminal chamber will in all likelihood not be established for a long time, one of the main reasons being that international criminal justice is expensive and someone would have to pay. Also, a number of states, for example Sudan, would be quite unlikely to sign up,’ said Magnus Killander, a legal expert with the University of Pretoria’s Centre for Human Rights. He noted that the continent has form in this regard: 30 states have yet to ratify the protocol that created the African Court on Human and People’s Rights (this court is operational, but does not have jurisdiction over international crimes).
Moreover, even when the African Court of Justice and Human Rights is up and running, it will only deal with situations that arose after its establishment, and it will have no jurisdiction over sitting heads of state or senior government officials.
In this context, a hasty withdrawal from the ICC would create an accountability gap, in which no institution would be empowered to investigate and prosecute international crimes. This will contribute nothing to peace and security on the continent; if anything, it will embolden would-be perpetrators.
If the AU was serious about rejecting impunity and preventing further war crimes and crimes against humanity, it would hang on to the justice provided by the ICC – as flawed as it may be at times – until a viable alternative is ready.
- Decisions, Declarations and Resolutions of the 25th Assembly of the African Union, 14-15 June 2015
- Draft Protocol on Amendments to the Protocol on the African Court of Justice and Human Rights, 15 May 2014
- Decisions and Declarations of Extraordinary Session of the Assembly of the African Union, 12 October 2013
- Rome Statute of the International Criminal Court, 1 July 2002