The AU and the ICC Still not the Best of Friends

By Nompumelelo Sibalukhulu and Antoinette Louw
Source: allafrica.com


ANALYSIS

The recently concluded 15th African Union (AU) summit which took place in Kampala from 25-27 July 2010 made it clear that the International Criminal Court (ICC) has not yet succeeded in winning the hearts and minds of African leaders.

The summit reiterated its previous decision that AU member states should not cooperate with the ICC in the arrest and surrender of President Omar Hassan Al-Bashir of Sudan. The summit also delayed the opening of an ICC liaison office in Addis, censured the ICC prosecutor, and urged African states not to forget their obligations to the AU when considering cooperation with the court.

The AU has had a frosty relationship with the ICC ever since it issued the arrest warrant for Bashir on charges of war crimes and crimes against humanity in March 2009. The relationship grew colder when the court added the charge of genocide in July this year.

The most significant aspect of the recent AU summit decision is that it restates the agreement reached at the AU’s 13th summit in Sirte, Libya, in July 2009 in which member states decided that because the AU’s request to the UN Security Council (UNSC) for the deferral of ICC proceedings against Bashir had not been acted upon, member states would not cooperate in the arrest and surrender of the Sudanese president.

The 13th summit decision was widely attributed to the influence of the AU chairperson at the time, Libyan leader Muamar Ghadafi. With Malawi’s president, Bingu Wa Mutharika, now in the chair, the 15th summit decision was an unanticipated turn of events. But the main reason for the initial optimism about the course of Africa-ICC relations was the markedly more positive position taken towards the ICC at the AU’s 14th summit in January 2010 in Addis Ababa: member states were silent on the call for non-cooperation with the ICC in the Bashir matter, and encouraged constructive engagement by African states at the ICC review conference.

The outcomes of the review conference provided further reasons for optimism: the conference was successfully held in Kampala, on African soil, and the majority of African ICC states parties sent high level delegations who pledged their commitment to the Rome Statute system.

Indeed, it was on the sidelines of the review conference that African states parties prepared a letter to the chairperson of the AU Commission supporting the opening of the ICC-AU liaison office in Addis Ababa. In further efforts to establish this office, ICC president Judge Sang-Hyun Song met in Addis Ababa with Dr Jean Ping, chairperson of the AU Commission on 9 July 2010 to discuss AU-ICC relations and the establishment of the liaison office. Taken together, all these events were surely a sign of better things to come for the ICC in Africa.

Against this backdrop, the 15th AU summit decision is disappointing for those who support the Rome Statute system as a central mechanism for tackling impunity for grave crimes. Nevertheless the decision confirms that AU concerns with the ICC are deep-seated and largely revolve around the Bashir indictment. It is this indictment that sparked AU concerns about the role of the UN Security Council in the work of the ICC; brought debates about the timing of peace and justice to the fore; and raised the thorny issue of prosecuting a sitting head of state.

These concerns motivated the AU to request the UN Security Council, in 2009, to defer the proceedings against Bashir for a year under Article 16 of the Rome Statute. When the UNSC failed to issue a formal response, the AU not only withdrew cooperation with the ICC in the arrest of Bashir, but also proposed that Article 16 be amended to transfer the power of deferral to the UN General Assembly should the Security Council fail to respond to a request for deferral within a period of six months. This proposed amendment is up for discussion at the 9th ICC Assembly of States Parties meeting in New York in December 2010.

How far African states parties will go in supporting the AU on the amendment of Article 16, or indeed the organisation’s other decisions on the ICC, remains to be seen however. When the amendment proposal was tabled at the 8th ASP in November 2009 by South Africa, only two other African states parties supported it. And since the AU first decided not to cooperate with the ICC on the Bashir matter, several African governments have confirmed their intention to fulfil their treaty (and in the case of South Africa, domestic) legal obligations to arrest the Sudanese president should he arrive on their territory.

The fact that individual African states parties do not clearly support AU decisions on the ICC has not escaped the intergovernmental organisation. The recent 15th summit decision called on member states ‘to speak with one voice to ensure that the proposed amendment to Article 16 of the Rome Statute [is acted upon],’ and more significantly, the decision ‘Requests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC’.

Tensions between states parties and the AU on the matter however persist, with the Sudan Tribune reporting on 17 August 2010 that Botswana Foreign Affairs and International Cooperation Minister Phandu Skelemani told reporters, in response to these clauses in the 15th AU summit decision: ‘We have not surrendered the sovereignty of this country to the AU’ adding that ‘the International Criminal Court (ICC) Rome Statute is signed by a Country not AU. Botswana does not fear being isolated by other African countries since they [Botswana] are implementing the international protocols they have signed’.

These latest developments suggest that much still needs to be done to foster, let alone build, confidence in the ICC at the level of the AU. Until the Bashir matter is resolved – one way or another – it seems unlikely that relations will improve dramatically. Given this, African states parties must be relied upon to take up the responsibility of ensuring that the Rome Statute system they signed up to works in the interests of African victims of mass atrocities.

Nompumelelo Sibalukhulu is a junior researcher in the International Crime in Africa Programme and Antoinette Louw a senior research fellow in the International Crime in Africa Programme of the Institute for Security Studies.