The African Union and the International Criminal Court: The Summer of Our Discontent(s)

JURIST Guest Columnist Charles Jalloh of the University of Pittsburgh School of Law says that unless the AU and the ICC establish a proper dialogue, the logic of mutual gain for the ICC and Africa is at a risk of being undermined if not entirely lost....

On July 27, 2010, the Assembly of Heads of States--the primary decision-making organ of the African Union (AU)--met in Kampala, Uganda for its 15th Annual Summit. As usual, the African leadership adopted some important decisions and declarations on a range of political, economic, and social issues affecting the continent. The Assembly also adopted decisions regarding three justice-related questions that have been on its agenda for the past few years, namely: the International Criminal Court (ICC or the Court), the abuse of the principle of universal jurisdiction, and the pending trial in Senegal of former Chadian President Hissène Habré on allegations of torture.

Ironically--considering that the meeting took place in the same venue where barely over a month ago the ICC had held its first-ever Review Conference since the Rome Statute entered into force on July 1, 2002--the AU's latest decision regarding the ICC shows its growing discontent with the current trajectory of the Court's work in Africa; in particular, the sequencing of justice and peace in the Sudan.

Since July 2008, when the ICC Prosecutor Luis Moreno-Ocampo applied for an arrest warrant for Sudanese President Omar Hassan Al Bashir, the AU has taken a progressively tougher stance against the Court. The latest Assembly decision continues that trend. It also begs the question when the current impasse between the Africa region and the Hague-based permanent international criminal tribunal would end.

Like a number of summit decisions adopted after July 2008, the AU Assembly's Kampala Decision underscored African governments' concerns about the negative impact of the ICC's arrest warrant for President Al Bashir on the peace processes in the Sudan; reiterated its previous decision that all 53 AU member states "shall not cooperate" with the Court in respect to the arrest and surrender of the Sudanese leader; expressed disappointment that the United Nations Security Council has failed to act on the AU's request to defer for one-year--in the interest of peace pursuant to Article 16 of the Rome Statute--the ICC proceedings against President Al Bashir; and, finally, urged African states to speak with one voice on the AU's November 2009 proposal to amend Article 16 of the Rome Statute.

The latter proposal, which will be considered in the meeting of all ICC States Parties that will be held in November 2010, stems from the AU's frustration with the Security Council over the repeated requests for a Sudan deferral which was first presented by African states in July 2008. Under the AU's amendment to Article 16, the UN General Assembly would be empowered to act on a deferral request should the Security Council fail to do so within six months.

The AU's Article 16 proposal is controversial because, among other things, it implicates not only the question of how to sequence justice and peace in ongoing conflict situations where international crimes are being committed, but it also reopens old debates about the nature, role, and legitimacy of Security Council (in)actions over issues of international peace and security under the Rome Statute as well as the foundational UN Charter. The proposal should therefore be expected to lead to a showdown when the issue comes up for consideration by the 111 ICC States Parties.

Unlike its earlier summit decisions relating to the Court, in the Kampala Decision, the AU Assembly also mentioned two issues worth highlighting. First, the AU requested that, in implementing the latest resolution, its member states "balance, where applicable, their obligations to the AU and their obligations to the ICC" (Decision, para. 6). Here, by effectively conceding a margin of appreciation in the implementation of its decision to the 30 AU States that also happen to be States Parties to the Rome Statute, the AU is probably responding to the widespread NGO criticism of its Decision on the Meeting of African States Parties to the Rome Statute taken at Sirte, Libya in July 2009 in which it first directed its members to ignore the ICC's arrest warrant for President Al Bashir.

Pro-ICC human rights activists, along with a few African states like Botswana and Ghana, subsequently suggested that the AU's Sirte decision was inconsistent with the obligation of African ICC States Parties to arrest and surrender suspects and accused persons requested by the Court, as per the cooperation regime contained in Part 9 of the Rome Statute. Unfortunately, such arguments were often made without meaningful analysis of the legal basis for the AU decision which was predicated on Article 98 of the Rome Statute.

Yet, it is far from clear whether, under Article 98, the ICC is even permitted to request its (African) States Parties to render President Al Bashir when his home state (Sudan) is not a party to the Court and he is ordinarily entitled to customary international law immunities before the national authorities of third states. Of course, the exception to this would be if there is a waiver of immunity or prior Sudanese consent for his arrest. That said, some scholars have suggested that the fact that the Security Council referred the Sudan situation to the ICC is sufficient to displace the applicable immunities. This is deemed to flow from the binding nature of Chapter VII of the UN Charter which is the legal basis for the referral. However, this position remains contested sitting, as it does, uncomfortably alongside the inherently consent-based character of the ICC and international law.

Second, though it has previously expressed dissatisfaction with the ICC Prosecutor's handling of the Sudan situation (especially the timing of the Al Bashir arrest warrant), the AU Assembly, for the first time, criticized Prosecutor Moreno-Ocampo personally. It accused him of "making egregiously unacceptable, rude and condescending statements" in relation to the Al Bashir case and in respect to "other situations in Africa" (Decision, para. 9).

While certain AU states are obviously upset with the ICC Prosecutor, the use of such language against Moreno-Ocampo is rather unfortunate. It advances neither the discourse in respect to the Sudan situation, nor the cause of justice demanded by the victims of the atrocities in Darfur that the African leadership has spent the past few years worrying about. On the other hand, in fairness to the AU leaders, the Prosecutor is known to have made more than a few simplistic and misleading political statements about complex legal and factual situations on the continent. These are bound to offend the African officials who already perceive him as playing a destructive political, rather than constructive prosecutorial, role to aid their peace-making efforts. Recognizing the potential damage to the Court's reputation, some respected scholars have condemned some of those statements. Worse, Sudanese NGOs have gone so far as to file pleadings before the Pre-Trial Chamber of the ICC asking it to review their propriety.

In any case, one might wonder whether, and if so why, such language was introduced in the Kampala Decision. Could this step be at the behest of the majority of African states instead of only a few well-known pro-Sudan and anti-ICC hard liners such as Libya? Given the AU's preference for decisions based on consensus, if the language was supported by everyone, then the implication is that the AU's discontent with the Court has reached an entirely new fever pitch level. On the other hand, if the language was included because it was promoted by (or adopted in the presence of) only a few vocal African states, then it suggests a potential problem with internal AU procedures that must urgently be corrected for the AU Assembly to continue to be taken seriously outside the continent.

But the most important signal of the AU's growing dissatisfaction with the ICC in the Kampala Decision was the Assembly's decision to reject, albeit for now, the Court's request to open a liaison office in Addis Ababa, Ethiopia - where the AU headquarters are located. The idea of such an office had been championed by civil society groups mainly over the course of the past year. Advocates hoped that the ICC, by opening up such an office in Addis Ababa, would help restore smooth relations with African governments and help bridge the obvious distance between it and the AU. The proposal was formally endorsed by a resolution of ICC States Parties in the period leading up to the First ICC Review Conference in Kampala.

Though the AU has some important and legitimate concerns with regard to the ICC (Prosecutor) which it should continue to try to address constructively, this decision suggests a new low in the relationship between the two sides. Recent meetings between high Court and AU officials suggest that the former is committed to engaging in a dialogue over the African concerns. But, by its decision to reject a liaison office, the African leadership suggests that it holds the opposite view. If this is correct, it is difficult to discern how and when the two sides might break the current deadlock over the Sudan. The Darfur hot potato, which the Security Council essentially handed to the ICC through its Chapter VII referral in March 2005, has proven to be nothing more than a continual source of unwelcome and distracting heat for the fledgling judicial institution.

On a more positive note, the language of the Kampala Decision to the effect that the AU "[d]ecides to reject for now" (Decision, para. 8; emphasis added) does clearly leave some room for a change of heart on the part of African governments. Of course, a change of heart will probably only occur when relations improve between the ICC and the AU. While diplomatic and civil society initiatives are definitely underway to help speed up that process, both in Africa and elsewhere, short of pure speculation, it is hard to predict with any degree of certainty when this might happen.

That said, as I have argued more fully elsewhere, both Africa and the ICC have a mutual interest in engaging constructively with each other. From the perspective of the budding ICC, which today remains weighed down by the burden of hyper expectations of what it can realistically accomplish in a harsh sovereignty-conscious State-centric world, the reality is that Africa has been one of its most ardent supporters and the source of its current caseload. The continent is therefore an important partner, both for its immediate goal of achieving short term justice for victims in the five African situations currently under prosecutorial scrutiny and its long-term aspiration of helping "put an end to impunity" loftily stated in the preamble to the Rome Statute.

From the perspective of the AU, which is more than ever before preoccupied with the question of how to provide human security for war-weary Africans, the Court offers one mechanism through which it could address the scourge of impunity. But, due largely to its growing discontent with the actions of the ICC Prosecutor, the AU is currently actively considering the creation of a regional court to prosecute crimes committed in Africa. If done well, this is an obvious way of assuaging African government concerns about the selectivity and biased trajectory of international criminal justice. These include the potential prosecutions of important crimes, such as corruption and illegal takeovers of government, which are not prosecuted by the Court but are of particular interest to Africa. At the same time, given the extent of the political will and resources required for such an undertaking, an Africa-responsive ICC offers the promise of a more viable internationally supported mechanism through which to prosecute those deemed most responsible for planning and carrying out mass atrocities on the continent.

Sadly, reading the AU Assembly's latest decision from Kampala--the same place where just weeks ago African States reiterated their commitment to the Rome Statute at the close of the Review Conference--suggests that the logic of mutual gain for the ICC and Africa is at a risk of being undermined if not entirely lost. It is to be hoped that the relevant parties, both on the Court and the AU side, will do what is necessary to engage in a good faith dialogue to resolve the current impasse. And resolve it soon. The victims of atrocities in Darfur and elsewhere in Africa deserve no less.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. A graduate of Oxford University, where he was a Chevening Scholar, he previously worked at the Canadian Department of Justice, the Special Court for Sierra Leone and the United Nations International Criminal Tribunal for Rwanda. His recent scholarship, available here, has focused on unpacking the African Union concerns about the ICC as well as the abuse of universal jurisdiction in relation to African officials.

Suggested citation: Charles Jalloh, The African Union and the International Criminal Court: The Summer of Our Discontent(s), JURIST - Forum, Aug. 6, 2010, http://jurist.org/forum/2010/08/the-african-union-and-the-international-criminal-court-the-summer-of-our-discontents.php.

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