JURIST Special Guest Columnist James Nyawo, a Ph.D. candidate at the Irish Centre for Human Rights, says that the African Union must emulate the EU and begin to confront human rights abuses, not only to prevent the organization from losing relevancy, but also to ensure that those who have committed crimes against humanity face justice…

The arrests of Radovan Karadzic, Ratko Mladic and most recently Goran Hadzic, are examples of how regional institutions can play a pivotal role in the struggle against impunity. The three suspects were indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) over a decade ago for war crimes and crimes against humanity carried out in the former Yugoslavia, but allegedly enjoyed protection from the Serbian government. However, sustained political and economic pressure from the international community, particularly the EU and the US, has caused the Serbian government to cooperate with the ICTY. This has bee successful, and now these former fugitives will face international justice in The Hague.

It could be argued that it was easier for the EU to exert pressure on Serbia because of the latter’s interest to join the EU. In fact, one of the conditions set for the ratification of the EU-Serbia Stabilisation and Association Agreement was Serbia’s full cooperation with the ICTY, especially in the arrest of the three fugitives. This condition was based on the EU’s broader values of good governance, rule of law and respect of human rights enshrined in the Treaty of Lisbon.

In Africa, the International Criminal Tribunal for Rwanda (ICTR) is facing similar challenges in its efforts to secure the arrest of at least nine genocide fugitives. The most recent fugitive to be apprehended is Bernard Munyagishari, who was arrested in May 2011 by the Democratic Republic of the Congo, together with the ICTR Office of the Prosecutor. The majority of the remaining fugitives are reported to be in African countries which are now considered to be “dens of génocidaires” by some in the Rwandan government. Kenya and Zimbabwe are among the countries suspected to be hosting these “génocidaires.”

According to the ICTR Prosecutor’s statement to the UN Security Council in June 2011, the ICTR has evidence of the fugitives’ whereabouts. One of these fugitives, Protais Mpiranya, a former guard of the late Rwandan president Juvénal Habiriyamana, is believed to be in Zimbabwe. However, the Zimbabwean government has denied this and has not cooperated with the ICTR. The Rwandan government also attempted to secure Mpiranya’s arrest through bilateral channels without success. Though the Rwanda Genocide Fugitives Tracking Unit has sent several international arrest warrants to the Zimbabwean government, they continue to be ignored.

Another high profile fugitive, Felicien Kabuga, is believed to be running businesses in Kenya and enjoying protection from either the Kenyan government or some influential individuals within Kenya. The reactivation of the ICTR-Kenya Police Task Force in November 2010 to track Kabuga was generally viewed as a positive development in securing his arrest. However, eight months have lapsed without any concrete results.

The fact that both UN Security Council Resolution 955 and the Statute of the International Criminal Tribunal for Rwanda include an obligation for all states to provide cooperation and judicial assistance to the tribunal means that Zimbabwe and Kenya are breaching their obligations under international law. Some claims even allege that Mpiranya is being protected by the Zimbabwean presidential guard, further complicating efforts to apprehend him.

What one finds missing in the work of the ICTR is the direct involvement of the African Union (AU) in overcoming the obstacles preventing the arrests of these fugitives. The AU is a continental institution consisting of 53 countries established to “to promote unity and solidarity among African States; to coordinate and intensify cooperation for development; to safeguard the sovereignty and territorial integrity of Member States.” The AU’s vision is one of an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena.

In the case of the ICTY, it is evident that the EU is actively involved in ensuring that those individuals accused of war crimes and crimes against humanity are brought to justice. It is difficult to find precise answers as to why the AU is not visible in the work of the ICTR. It may well be that the AU is addressing the problems using its famous quiet diplomacy strategy. Some may argue that unlike the EU, the AU does not have the tools to ensure that its member states comply with its decisions. However, such an argument is disproved by past actions of the organization, such as suspending the membership of some countries following military coups or disputed elections. For example, the AU has suspended Mauritania, Guinea, Madagascar and Niger following military coups. In 2010, it also suspended the Ivory Coast following the disputed presidential election. The legal basis for the suspension of these countries was found in Article 4(p) of the Constitutive Act, which condemns and rejects the unconstitutional change of government.

The AU’s Constitutive Act provides a legal framework for the continental body to fight impunity. Article 4(h) and (o) authorize the organization to intervene in member states to stop war crimes, genocide, crimes against humanity and prevent impunity. One of the major differences between the AU and the EU is that the latter appears to be ready, willing and capable to transform its principles into practical action. This is evident from how the EU managed to exercise pressure on Serbia, resulting in the arrest and transfer of the last fugitives to the ICTY. The question then becomes whether the AU will emulate this EU practice and pressure Kenya and Zimbabwe to hand in genocide suspects to the ICTR.

The Murambi and Ntarama Genocide Memorial Sites in Rwanda hold the bones, skulls, corpses and blood stained belongings of more than 30,000 women and children from the 1994 genocide. These sites illustrate the heinous nature of the crime of genocide and how genocide is not only crime against a single ethnic group or a country, but a crime against all of humanity. It is difficult to comprehend why some African leaders would protect genocide fugitives. The AU’s failure to publicly exert pressure on Zimbabwe and Kenya to fully cooperate with the ICTR raises fundamental questions about its effectiveness and, to some extent, its relevance. It gives the impression that the continental body has been hijacked by self-centered bureaucrats who are perhaps more concerned about preserving their own safety and job security than promoting the continental interests outlined in the Constitutive Act. They appear to side with states at the expense of the victims. In addition, the preservation of the sacrosanct principle of state sovereignty seems to influence their policy decisions even when some states’ behavior contradicts the AU’s founding values and principles.

The threat that this poses to the AU is that, in a more globalized world where the “responsibility to protect” has become a cornerstone of state legitimacy, if it fails to act against states that fail to uphold this responsibility another organization will. This could inevitably lead to further marginalization of the union, as is already being witnessed in Libya. The AU’s indifference to Colonel Muammar Gaddafi’s actions against the ongoing unrest left open a gap which was filled by the Arab League, the UN Security Council, NATO and the International Criminal Court. Ultimately, the AU’s efforts to resolve the conflict significantly lagged behind those of other international organizations, rendering it largely irrelevant on the issue.

It is common knowledge that the Rwandan genocide happened due to the failure of the international community to take decisive action at a critical moment. Some members of the UN Security Council used their influence to downscale the peacekeeping forces at the moment that they were needed most, despite emphatic efforts from the Nigerian Ambassador to the UN, Dr. Ibrahim Gambari, to maintain a UN presence in Rwanda. Given that Nigeria was a non-permanent member of the council, its influence was significantly less than other members, and the result was the death of between 800,000 and 1,000,000 Rwandans. Naturally, one would expect that the AU would have learned a lesson and been prepared to provide as much assistance as possible to reconstruct Rwanda, especially through playing a pivotal role in ensuring that fugitives in African countries are arrested and surrendered to the ICTR without delay. It is disheartening that the union has not lived up to these expectations.

Africa is renowned for its spirit of solidarity. This spirit was palpable during the struggles against colonial rule across the continent, when Ethiopians supported the anti-apartheid African National Congress in South Africa and Algerians provided military equipment to liberation movements in Mozambique, Zimbabwe and Angola. African liberation movement leaders were given diplomatic passports by other African governments, allowing them to move around the world mobilizing support for their anti-colonial efforts. One would expect that the same determination and spirit of solidarity would surface in the face of war crimes, crimes against humanity and genocide committed against the African people. However, the sad story is that in most cases the opposite is true: African solidarity is used to protect the leaders committing these crimes, not the victims. This is very common in the debates surrounding the implementation of international criminal justice in Africa. Phrases such as selective targeting, neo-colonisation, encroachment of sovereignty or violation of immunity are often employed to prevent any form of accountability for the mass atrocities committed by state officials. What is repeatedly forgotten is that the victims of these crimes are Africans who deserve justice.

Perhaps it is time for the AU to bridge the gap between decisionmaking bodies and African public opinion. Such an change would increase the credibility of the AU, as its decisions and resolutions would come to reflect the views of the African population, and not just those of a few influential leaders. The AU’s Pan-African parliament, which is supposed to serve this function, needs to be more proactive in influencing the decisions made by other AU bodies. The parliament needs to be the political barometer of African opinion on certain issues that affect the continent. In the case of Zimbabwe and Kenya, one would be interested in knowing the extent to which the people of those countries support their governments’ decision to harbour those who are alleged to have committed genocide in Rwanda.

One hopes that the African Union will use its influence to encourage Zimbabwe and Kenya to cooperate with the ICTR and ensure that those suspected of committing genocide stand trial. Such a move would demonstrate that the continental body is not only paying lip service to ending impunity, but is actually ready to take concrete action to fulfill its obligations as outlined in the Constitutive Act. It would also silence those who are skeptical about the capacity of the AU to confront its own challenges.

James Nyawo is a PhD Candidate at the Irish Centre for Human Rights. His doctoral research focuses on the implementation of international criminal justice in Africa. He has a degree in sociology from the University of Zimbabwe and a masters degree in Humanitarian Programme Management from Liverpool University. He has extensive experience working in Africa’s conflict zones, including Angola, Northern Uganda and Sudan.

Suggested citation: James Nyawo, Risking Irrelevance: The Threat of Impunity to the African Union, JURIST – Forum, Aug. 4, 2011, http://jurist.org/forum/2011/08/james-nyawo-africa-justice.php.