{"id":82,"date":"2010-05-25T09:16:10","date_gmt":"2010-05-25T17:16:10","guid":{"rendered":"https:\/\/blogs.ubc.ca\/ligi\/?p=82"},"modified":"2010-05-31T09:05:00","modified_gmt":"2010-05-31T17:05:00","slug":"africa-and-the-icc-resistance-or-cooperation","status":"publish","type":"post","link":"https:\/\/blogs.ubc.ca\/ligi\/2010\/05\/25\/africa-and-the-icc-resistance-or-cooperation\/","title":{"rendered":"Africa and the ICC – Resistance or Cooperation?"},"content":{"rendered":"

By Asad Kiyani<\/strong><\/p>\n

The ICC is only prosecuting situations in Africa.\u00a0 Given this, and the fact that in 2009 the African Union passed a resolution of \u201cnon-cooperation\u201d 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.\u00a0 The major theme has been that Africa is being marginalized even while the Courts energies seem largely devoted to African situations.<\/p>\n

<\/p>\n

NON-COOPERATION BY THE AFRICAN UNION?<\/strong><\/p>\n

The feeling of disempowerment was crystallized in the AU resolution of non-cooperation.\u00a0 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.\u00a0 The indictment was controversial both legally and politically.\u00a0 Legally it was troublesome because it could be argued that Bashir is immune from prosecution by the Court.\u00a0 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.<\/p>\n

The AU resolution framed these issues as a legal question \u2013 who can<\/em> be prosecuted by the ICC \u2013 and a political question \u2013 who should<\/em> be prosecuted.\u00a0 The resolution was passed at an AU meeting held in Sirte, Libya to discuss the relationship between African states and the ICC.\u00a0 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.\u00a0 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\u2019s 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.\u00a0 While the resolution therefore arose in large part because of frustration with the handling of the Sudan case, it carries far broader implications.<\/p>\n

Article 10 of the resolution is the non-cooperation provision.\u00a0 It states that, \u201c\u2026the 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.\u201d\u00a0 (See here for Decision 245<\/a> here.)<\/p>\n

While human rights groups have argued that the AU is engaging in a dangerous exercise by encouraging Bashir\u2019s 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.\u00a0 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<\/a> about the \u201cdouble standard\u201d applied by the ICC to \u201cpoor countries\u201d.\u00a0 Similarly, the AU passed a resolution in 2008 complaining about the abuse of universal jurisdiction to target African leaders (Decision 199<\/a>).<\/p>\n

AFTER THE AU RESOLUTION<\/strong><\/p>\n

With regards to the resolution itself, the practical effect of the non-cooperation provision has been minimal.\u00a0\u00a0 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.\u00a0 The Democratic Republic of Congo, Uganda and Central African Republic have stated they intend to continue to cooperate on those particular situations.\u00a0 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.\u00a0 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.<\/p>\n

As far as Sudan is concerned, there remains a clear lack of consensus about the issue of cooperation with the ICC.\u00a0 Immediately after the resolution, there were suggestions that Libya had bullied other members into passing the resolution.\u00a0 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.<\/p>\n

WHAT DOES THIS MEAN FOR THE REVIEW CONFERENCE?<\/strong><\/p>\n

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.\u00a0 One is that it is unclear whether the Sudanese president\u2019s immunity can legally be overridden, as Sudan is not an ICC member.\u00a0 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.\u00a0 As the discussion above makes clear, the AU is not ready to accept the way that relationship has played out.\u00a0 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.\u00a0 The AU and African states have repeatedly complained that their voices are being ignored by the ICC and the Security Council.\u00a0 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\u2019s failure to act on its requests for deferrals under Article 16 of the Rome Statute. (Articles 9 and 10 of Decision 245<\/a>.) For these reasons, while the Bashir issue sparks some disagreement, there remains a stronger consensus on an \u201cAfrican\u201d approach on how to increase African influence over the ICC.<\/p>\n

It is unclear whether the Review Conference will include any discussion on the first two points \u2013 the relationship of the ICC to non-members, and the influence of the Security Council over the ICC.\u00a0 If any discussion does take place, it will likely be in conjunction with debates about the third point at one of the four \u2018Stocktaking\u2019 sessions, which are plenary discussions of general issues that are separate from formal debates over amendments to the Rome Statute.<\/p>\n

The stocktaking session on \u2018Peace and Justice\u2019 will be very important. The AU has been frustrated by the Security Council\u2019s refusal to acknowledge its requests that the Council defer the ICC investigations in Darfur in order to assist the peace process.\u00a0 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).\u00a0 Any discussion of these issues will surely include debate about the Bashir warrant, the AU\u2019s role in peacekeeping and peace talks, and the role of the ICC in the peace-building process.\u00a0 No doubt a similar discussion will take place with respect to Uganda.<\/p>\n

The \u2018Complementarity\u2019 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.\u00a0 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.\u00a0\u00a0 Similarly, a stocktaking session on \u2018Cooperation\u2019 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.<\/p>\n

The outcomes of these discussions will be of great interest to African states, the AU, and the ICC and related international institutions.\u00a0 But for a consideration of the past and future impact of the ICC on the African people<\/em>, perhaps the most useful conversation will be the fourth session, entitled \u2018Impact on victims and affected communities\u2019.\u00a0 This session might be the only one that substantially considers the interests of local peoples \u2013 as opposed to local officials, national governments, or international institutions \u2013 in the development of the ICC.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Asad Kiyani The ICC is only prosecuting situations in Africa.\u00a0 Given this, and the fact that in 2009 the African Union passed a resolution of \u201cnon-cooperation\u201d 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.\u00a0 The major […]<\/p>\n","protected":false},"author":2095,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8260],"tags":[2423,8387,8388],"class_list":["post-82","post","type-post","status-publish","format-standard","hentry","category-icc-review-conference","tag-africa","tag-international-criminal-court","tag-revcon"],"_links":{"self":[{"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/posts\/82","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/users\/2095"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/comments?post=82"}],"version-history":[{"count":13,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/posts\/82\/revisions"}],"predecessor-version":[{"id":136,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/posts\/82\/revisions\/136"}],"wp:attachment":[{"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/media?parent=82"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/categories?post=82"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ubc.ca\/ligi\/wp-json\/wp\/v2\/tags?post=82"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}