Africa and the ICC – Resistance or Cooperation?

By Asad Kiyani

The ICC is only prosecuting situations in Africa.  Given this, and the fact that in 2009 the African Union passed a resolution of “non-cooperation” with the Court, it would be useful to trace how the relationship between the Court and its most important constituency has developed over the past year.  The major theme has been that Africa is being marginalized even while the Courts energies seem largely devoted to African situations.

NON-COOPERATION BY THE AFRICAN UNION?

The feeling of disempowerment was crystallized in the AU resolution of non-cooperation.  That resolution was inspired by the decision of the ICC to indict Omar al-Bashir, the President of Sudan, for his (alleged) role in the Darfur crisis.  The indictment was controversial both legally and politically.  Legally it was troublesome because it could be argued that Bashir is immune from prosecution by the Court.  Politically, there was and continues to be concern that indicting him would derail the fragile peace process in Darfur, and put at risk existing humanitarian programs in the country.

The AU resolution framed these issues as a legal question – who can be prosecuted by the ICC – and a political question – who should be prosecuted.  The resolution was passed at an AU meeting held in Sirte, Libya to discuss the relationship between African states and the ICC.  Far from being a knee-jerk reaction to the indictment of Bashir, the meeting raised a number of legal issues that required clarification and resolution.  Points at issue included the ability of the Security Council to refer matters to the ICC under Article 13 of the Rome Statute; the Security Council’s exclusive deferral powers under Article 16; the role for input from regional bodies into ICC decisions on prosecutions and investigations; the position of immunities for individuals from non-ICC member states; and the relationship between Articles 27 and 98, which respectively place a requirement on states to arrest individuals and a requirement to observe other international obligations, including those arising from immunities.  While the resolution therefore arose in large part because of frustration with the handling of the Sudan case, it carries far broader implications.

Article 10 of the resolution is the non-cooperation provision.  It states that, “…the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.”  (See here for Decision 245 here.)

While human rights groups have argued that the AU is engaging in a dangerous exercise by encouraging Bashir’s role in the Darfur conflict, this analysis misses the subtleties of the AU resolution described above, and ignores the vigorous African debate about the ICC and the resolution itself.  More importantly, it contributes to a feeling of marginalization that has been expressed by at least some African leaders. Jean Ping, Chair of the AU Commission, recently complained about the “double standard” applied by the ICC to “poor countries”.  Similarly, the AU passed a resolution in 2008 complaining about the abuse of universal jurisdiction to target African leaders (Decision 199).

AFTER THE AU RESOLUTION

With regards to the resolution itself, the practical effect of the non-cooperation provision has been minimal.   It has not halted cooperation on any of the non-Sudanese situations before the Court, nor has it given Bashir license to roam around Africa.  The Democratic Republic of Congo, Uganda and Central African Republic have stated they intend to continue to cooperate on those particular situations.  In fact, even as the AU was making the declaration of non-cooperation, the Kenyan government was discussing the possibility of an ICC investigation in its post-election violence of 2007 and 2008.  While the Kenyan government did not formally refer the matter to the ICC, it pledged its future cooperation on the same day as the Prosecutor announced he would use his own powers to start an investigation.

As far as Sudan is concerned, there remains a clear lack of consensus about the issue of cooperation with the ICC.  Immediately after the resolution, there were suggestions that Libya had bullied other members into passing the resolution.  Within weeks, Bashir was forced to cancel a trip to Kampala after the Ugandan Minister for Foreign Affairs said he could be arrested. South Africa also changed its position and stated it would arrest Bashir if he traveled there. Other AU members such as Botswana, Chad and Benin have made clear from the outset their intent to abide by any request to arrest Bashir. Since then, Bashir has only traveled to non-ICC states, and skipped a conference on the Darfur crisis held in Kenya in March of this year even though he was publicly invited by the Kenyan government.

WHAT DOES THIS MEAN FOR THE REVIEW CONFERENCE?

While the AU resolution seeks to protect Bashir, a man who is almost certainly complicit in mass atrocity, there are principled reasons for this challenge to the ICC.  One is that it is unclear whether the Sudanese president’s immunity can legally be overridden, as Sudan is not an ICC member.  TTThe other is that to accept the referral of Sudan and the indictment of Bashir is to accept a particular relationship between the ICC and the United Nations Security Council.  As the discussion above makes clear, the AU is not ready to accept the way that relationship has played out.  The third concern is that the decision-making regarding Darfur has been seen to marginalize those African states and regional bodies that have been directly involved in peacekeeping and peace talks in the region.  The AU and African states have repeatedly complained that their voices are being ignored by the ICC and the Security Council.  Note in this regard that in justifying its decision not to cooperate on the arrest and transfer of Bashir, the AU pointed at the Security Council’s failure to act on its requests for deferrals under Article 16 of the Rome Statute. (Articles 9 and 10 of Decision 245.) For these reasons, while the Bashir issue sparks some disagreement, there remains a stronger consensus on an “African” approach on how to increase African influence over the ICC.

It is unclear whether the Review Conference will include any discussion on the first two points – the relationship of the ICC to non-members, and the influence of the Security Council over the ICC.  If any discussion does take place, it will likely be in conjunction with debates about the third point at one of the four ‘Stocktaking’ sessions, which are plenary discussions of general issues that are separate from formal debates over amendments to the Rome Statute.

The stocktaking session on ‘Peace and Justice’ will be very important. The AU has been frustrated by the Security Council’s refusal to acknowledge its requests that the Council defer the ICC investigations in Darfur in order to assist the peace process.  That deferral power is in Article 16 of the Rome Statute, and the AU is pushing for the General Assembly to be able to exercise that power if the Security Council fails to act (all of which will be discussed in greater detail in a future post).  Any discussion of these issues will surely include debate about the Bashir warrant, the AU’s role in peacekeeping and peace talks, and the role of the ICC in the peace-building process.  No doubt a similar discussion will take place with respect to Uganda.

The ‘Complementarity’ session at the review conference will also be of great concern to African states. The question of domestic trials has arisen in the cases of Sudan, Uganda and Kenya, where each government has proposed domestic trials instead of reliance on the Hague.  Whether these local trials take place, and the mechanics and logistics of any such trials, will be of great interest to bodies such as the AU that are seeking to assert greater local influence in the international criminal process.   Similarly, a stocktaking session on ‘Cooperation’ will consider how and when states and other bodies ought to be cooperating with the ICC. This would obviously include discussion of the role of the AU as a regional body. It would also touch on the capacity of states, including many African states, to implement and adhere to the Rome Statute through appropriate legislation, institutions, and international agreements.

The outcomes of these discussions will be of great interest to African states, the AU, and the ICC and related international institutions.  But for a consideration of the past and future impact of the ICC on the African people, perhaps the most useful conversation will be the fourth session, entitled ‘Impact on victims and affected communities’.  This session might be the only one that substantially considers the interests of local peoples – as opposed to local officials, national governments, or international institutions – in the development of the ICC.  If the AU is serious about ending the marginalization of Africans, then encouraging a greater voice for local peoples would be a good place to start.