THE RELATIONSHIP BETWEEN THE AFRICAN UNION AND THE INTERNATIONAL CRIMINAL COURT by Nsongurua Udombana

The Relationship between the African Union and the International Criminal Court

Nsongurua UdombanaÓ

1. In Lieu of an Introduction

It is evident that States Parties to the Rome Statute of the International Criminal Court[1] conceived of a court that will depend largely on the collaboration or cooperation of the international community – states and noon-state entities – for its effective functioning. Several provisions of the ICC Statute envision such collaboration; a sampling will suffice. The Preamble to the Statute speaks of the necessity to enhance international cooperation in order to punish “the most serious crimes of concern to the international community as a whole”. Article 2 establishes a special relationship between the ICC and the United Nations (UN) “through an agreement to be approved by the Assembly of States Parties”. Article 4(2) provides that the Court may exercise its functions and powers on the territory of any State Party to the Statute or, “by special agreement”, on the territory of any other State.

State referral is one of the trigger mechanisms under the Statute. The Statute provides: “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes”.[2] It is instructive that many of the cases currently being handled by the ICC were referred by States. The ICC Statute also permits the Security Council to refer cases to the Court – in exercise of its collective security mandate under Chapter VII of the UN Charter – notwithstanding that some members of the Security Council have not ratified the ICC Stature; a clear case of “do as I say and not as I do”.

Cooperation and collaboration are envisaged in other areas. For example, the ICC Prosecutor needs the cooperation of states to effect arrest of suspects. Article 59 provides: “A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws …” Clearly, in the absence of cooperation, an arrest becomes almost impossible, notwithstanding the provisions of the ICC Statute. The Statute permits the Court to request cooperation from States Parties[3] and to seek assistance from non-States Parties[4] and even non-governmental organisations.[5] States Parties are expected to cooperate fully with the Court based,[6] including surrendering accused persons by the custodial state[7] and providing other forms of assistance.[8]

Given the above provisions, it is inconceivable that many African States Parties to the Rome Statute are now working (overtime) to undermine the very Court they laboured with other stakeholders to birth. In the least three or so years, the African Union (AU) – the umbrella organisation of African states – has urged its Member States to negate their obligations to the ICC. What effect does this grandstanding has on respect for, and the enforcement of, international criminal justice? How may the disagreements between the AU and ICC be resolved? These are some of the vexed questions that this paper will attempt to answer.

2. The ICC and the African Union

Does Africa believe in international criminal justice? This is asking the obvious, since African states play critical roles in the processes leading to the adopted of the ICC Statute and the establishment of the Court. If so, why has cooperation between Africa and the ICC suddenly gone sour, giving way to antagonism? To begin with, African states were active at the Rome Diplomatic Conference that negotiated the ICC Statute, meaning that they contributed to its final wordings. African civil society groups also actively participated in the various non-governmental conferences and their outcome documents that were later synthesised into what became the ICC Statute. Many African States – more than thirty, in fact – are parties to the Statute; indeed African States represent the largest regional bloc among ICC Member States. An African State – Senegal – was the first to ratify the Statute, on 2 February 1999. Many of these States Parties have adopted implementing domestic legislations, including South Africa. African states also played a strong role at the ICC Review Conference in Kampala, Uganda, in 2010.[9] In fact, the African Union (AU) – the institutional umbrella for African states[10] – urged these states to “prepare fully” for that Conference.[11]

M. Cherif Bassiouni, an African, chaired the Drafting Committee that led to the ICC Statute’s adoption. Judge Sanji Mmasenono Monageng of Botswana is the current ICC First Vice-President. Other African judges currently serving at the Court are Akua Kuenyehia of Ghana, Joyce Aluoch of Kenya, and Chile Eboe-Osuji of Nigeria. Mrs. Fatou Bensouda, an African of Gambian nationality, was the ICC Deputy Prosecutor for years. She was elected the new ICC Prosecutor in December 2011[12] and assumed the Office after the pioneer Prosecutor – Luis Moreno-Ocampo – served out his term in June 2012. Many other Africans work at the ICC as support and technical staff.

Given these facts, one would expect African states to support the ICC as a matter of course. However, the opposite appears to be the case. ICC-Africa relations have gone off-course, with hostility substituting for cooperation. And the reason is not far to seek. Available evidence indicates that all the situations for which warrants of arrests have been issued by the ICC Pre-trial Chambers, or for which prosecutions have commenced or completed, originate in Africa. Of the total number of indictments so far made, three – Uganda, D.R. Congo, and C.A.R. – are state referrals, reflecting the deference that the ICC makes to national criminal justice systems, which is an essential component of complementarity.[13] The Government of Mali added to that number in July 2012, when it requested the OTP to investigate egregious crimes in the course of the civil war in that country.[14] Sudan and Libya are Security Council referrals, indicating that the Council sees the ICC as complementing its primary responsibility of maintaining and promoting international peace and security.[15] Côte d’Ivoire is proprio motu investigations – the third trigger mechanism under the ICC Statute.[16] The Statute permits the OTP to seek “authorisation of an investigation” after analysing “the seriousness of the indictment received” and concluding that “there is a reasonable basis to proceed with an investigation”.[17] Kenya is also seen as proprio motu case, but this is debatable.

The tipping point in the current frosty relationship appears to be the indictment of President al-Bashir. Shortly after the Office of the Prosecutor (OTP) issued a request for indictment against al-Bashir, the AU’s Peace and Security Council (PSC), the AU Organ charged with the prevention, management and resolution of Africa’s conflicts, issued a communiqué – on 21 July 2008 – expressing, inter alia, the view that “in order to achieve long-lasting peace”, it is important to “uphold principles of accountability and bring to justice the perpetrators of gross human rights violations’ in Darfur”.[18] However, the PSC declared that “the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace”.[19] In order to address the issues of non-impunity and peace “in a mutually reinforcing manner”, the PSC called on the UN Security Council “to defer the process initiated by the ICC, taking into account the need to ensure that the on-going peace efforts are not jeopardized, as well as the fact that, in the current circumstances, a prosecution may not be in the interest of victims and justice”.[20]

The AU Assembly has also repeatedly urged the UN Security Council to “defer the process initiated by the ICC” against al-Bashir, in accordance with Article 16 of the ICC Statute, which allows the Council to defer cases for one year.[21] It provides:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The ICC, on the other hand, takes the position that justice should not be sacrificed on the altar of peace. Thus, the OTP sees its role as essentially that of a prosecutor, not a negotiator; a role that falls within the framework of a criminal trial. A criminal court establishes guilt or innocence in accordance with the law, independent of political or other extraneous factors. In an address delivered in June 2007, the Prosecutor averred: “I was given a clear judicial mandate. My duty is to apply the law without political considerations. I will present evidence to the Judges and they will decide on the merits of such evidence”.[22] He further stated that,

for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground. … These proposals are not consistent with the Rome Statute. They undermine the law States Parties committed.[23]

Piqued by the ICC Prosecutor’s perceived intransigence, the AU Assembly, in 2009, directed the AU Commission to convene, “as early as possible, a meeting of the African countries that are parties to the Rome Statute … to exchange views on the work of the ICC in relation to Africa”.[24] Following the meeting, the AU Assembly, at its 2009 Summit in Libya, took an unprecedented, far-reaching, decision urging its Member States not to cooperate with the ICC.[25] In June 2010, the AU Assembly expressed “its disappointment” that the Security Council has not acted upon its request to defer the proceedings initiated against al-Bashir.[26] And in July 2011, the AU Assembly further called on its Member States not to cooperate in the execution of the arrest warrant and requested the “UN Security Council to activate the provisions of Article 16 of the Rome Statute with a view to deferring the ICC process on Libya, in the interest of Justice as well as peace in the country”.[27]

3. The ICC Statute and States’ Obligations

A. Trampling on Article 87(7)

Pursuant to AU decisions and directives, many African States Parties to the ICC Statute have refused requests by the ICC to surrender indictees coming within their jurisdiction. Chad, Kenya, Djibouti, and Malawi are among the culprits.[28] Indeed, in December 2011, the ICC Pre-Trial Chamber I rendered two decisions pursuant to Article 87(7) of the Rome Statute, finding that both Malawi and Chad had failed to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Al Bashir.[29]

Nigeria is one of the countries that have trampled on Article 87(7) of the ICC Statute. It is common knowledge that al-Bashir was in Nigeria in July 2013 to attend the AU Special Summit on HIV/AIDS, Tuberculosis and Malaria which held in Abuja between 15 and 16 2013. Sudan’s Strongman left Abuja after the opening ceremonies without the Nigerian Government apprehending and turning him over to the ICC, as required by the ICC Statute that Nigeria freely ratified.

When queried by the ICC,[30] Nigeria, through the Office of the Attorney General and Minister of Justice, offered a lame, if not an embarrassing, response.[31] The Letter reaffirmed Nigeria’s “firm commitment to the Rome Statute and her readiness for continued cooperation with the ICC to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community and contribute in the prevention of such crimes as well as advancing the rule of law in the world”.[32] It admitted, indeed, that “President Al-Bashir made a brief appearance at the opening of the AU Summit and without delivering any statement left the country”.[33] However, the Letter offered a feeble defence stated that “[t]he Federal Government did not invite President Omar H. A. Al-Bashir to undertake a visit to Nigeria”; that he “appeared in ostensibly to attend the special Summit of the African Union … held pursuant to the decision of the Assembly of Heads of State and Government of the African Union at its Session in May 2013”; that “Member States do not therefore require the invitation of host Governments to attend such Summits in line with the decision and tradition of the AU Assembly”; that “[a]ll AU Member States are under obligation to comply with the decisions, declarations and resolutions of the AU”.[34] The Letter further stated that “[t]he sudden departure of President Al-Bashir [from Nigeria] prior to the official end of the AU Summit occurred at the time that officials of relevant bodies and agencies of the Federal Government of Nigeria were considering the necessary steps to be taken in respect of his visit in line with Nigeria’s international obligations”.[35] The Letter concluded by underscoring “Nigeria’s continued cooperation and support for the international criminal justice system”.[36]

What type of reasoning is this? Did the Nigerian Government not have an advanced notice of al-Bashir’s visit to the country, even if for the purpose of AU Summit? Do foreign dignitaries enter Nigeria’s airspace without clearance by relevant Government agencies? More particularly, were Nigeria’s officials, including the Immigration, not involved in clearing al-Bashir before and after arriving Nigeria? Where did the aircraft carrying al-Bashir land? Who received him at the airport? Or did al-Bashir appear and disappear at the venue of the Summit like a ghost? Which agency offered him security protection for the period he was in Nigeria? Does the AU have a standing and standby police force? Surely, we are led to believe a lie when we do not see through the eye.

B. African States and the Pacta Sunct Servanda Principle

The AU’s directives on its Member States vis-à-vis the ICC raise some important legal issues worthy of closer examinations. One is whether the AU has authority to direct its Member States to negate their treaty obligations by failing to cooperate with the ICC? In other words, can an international organization prize its members to breach their treaty obligations to entities to which that organization is not a member? This question is not merely academic, but one with practical legal significance, given the sacred pacta sunct servanda principle, which by interpretation means: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.[37].

By ratifying the AU Constitutive and other AU instruments, Member States recognize the AU legal order, with all its unforeseeable potential developments. Such recognition introduces the AU law into fields previously governed exclusively by municipal law. It permits some AU institutions, such as the AU Assembly, to assume the character of supranational entities. The AU organs could, thus, exercise their powers in the fields contemplated by the AU treaties, and could require national agencies to refrain from interfering in these fields.[38]

However, this doctrine of limitation of sovereign rights applies only in respect of subject-matters covered by the treaties that define the relationship between the particular institution and its members. Indeed, some commentators argue that the transfer of powers to international organs in no way changes the legal status of member states.[39]States “continue, as before, to be subject only to international law, since the constitution of the organization itself remains a treaty”.[40]This opinion finds its echo in the PCIJ famous holding that, rather than incompatible with sovereignty, entering into commitments is actually an attribute of State sovereignty.[41]

The present writer submits that the sovereignty of AU Member States is limited only to the extent envisaged by the AU Act and its protocols. The AU, for the time being, does not have its own social order of power. Its law is a law among states, not a new constitution for a new political society. Further, when African states negotiated, signed, and ratified the ICC Statute, they did so individually as sovereign entities rather than collectively as AU Member States. The AU itself is not a party to the ICC Statute; neither was the treaty elaborated under its auspices. Even the UN was merely a facilitator to allow states reconcile controversies and achieve mutually acceptable results. As Brolmann writes, “in the conclusion of agreements on matters traditionally belonging to the realm of inter-state relations the role of organisations as independent actors is a subordinate one”.[42] Constitutional norms relating to formal sources of the law are essentially state-based.[43] Therefore, international organizations – like the AU – cannot, and “should not be viewed as independent and influential bodies enjoying a separate will, acting on a par with states”.[44]

Compliance to a treaty obligation is also a question of law, not politics, based on the pacta sunt servanda rule – the rule that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.[45] Of course, states do not often implement treaties merely out of respect for the pacta sunt servanda rule, which explains why some treaties sometimes contain specific obligations to facilitate compliance, as the ICC Statute has done. Thus, it appears that notwithstanding AU’s directives, African States Parties to the ICC Statute that allow indictees into their territories without arrest are violating their treaty obligations. Since the ICC Statute does not fall within the enforcement authority of the AU, these states do not need the AU to validate or legitimise their treaty obligations.

African states wishing to withdraw from the ICC Statute should follow the procedure laid down in the Statute, after a proper cost-benefit analysis, than hide under nebulous decisions or resolutions of some AU organs to negate their treaty obligations. The Statute provides that “[a] State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date”.[46] Even then, “[a] State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute”.[47] This makes inordinately good sense, since one cannot eat his cake and have it back.

4. Playing the ‘Devil’s Advocate’

These outbursts by the AU could be seen as a spontaneous reaction against what many African leaders increasingly perceive as neo-imperialism,[48] a view that is gaining acceptance even in scholarly circles.[49] In fact, some commentators suggest that the current international criminal law is imperialistic, given the “oppressive practices by which states may seek to redefine the world in their image, by defining a ‘universal’ in opposition to an ‘other’ – the idea of the ‘dynamic of difference’ – and seeking to bring the other within the universal by way of the ‘civilizing mission.’”[50] There may be some truths in these accusations, given the complicity in the conflicts that often results in heinous crimes and the selectivity in holding perpetrators of these crimes accountable. The current indictments, which parades virtually only African suspects at the ICC, raise credibility questions and give impression that the ICC is tool for the collective humiliation of Africa.

Reacting to those who oppose the ICC for being fixated on Africa, Annan asks: “Is the court’s failure to date to answer the calls of victims outside of Africa really a reason to leave the calls of African victims unheeded?”[51] Of course not; the fact that all the current case dockets are on Africa do not diminish the seriousness of the crimes, but they raise questions of equality before the law. As a principle that regulates the members of a society, justice should be applied on the basis of fairness and equality. Thus, when different sets of principles are applied to similar situations – when, for example, one person is condemned for an offense while the other is treated far more leniently for the same offense –, then such actions dilute not only the meaning of ‘equality before the law’, but also the fundamental principle of ‘non-discrimination’ on the basis of geography or other considerations. Truth and justice must be uncompromisable because they represent the first virtues of human society.[52] And if international criminal justice is a universal ideal, then major powers ought not to take distinctive approaches to justice that reflects their values and interests.

Africans, therefore, have a right to ask – and to receive answers to – some puzzling questions: Why are Western countries reluctant to demonstrate equal missionary zeal for justice in respect of grave crimes committed in Iraq, Afghanistan, Pakistan, Chechnya, Gaza, and etcetera? Why is Africa such an attraction as to earn it the unedifying title of “the ICC’s favourite customer”?[53]

In 2011, the Security Council quickly authorized military intervention in Libya – pursuant to Security Council adopted Resolution 1973 of 2011 – and referred the alleged egregious crimes to the OTP for investigation. Why is the Council playing a hide-and-seek game on Syria? Are the brutal massacres in Syria of less magnitude than those in Libya? Why are Western countries looking ‘the other way’ as vicious regimes in other Arab countries murder unarmed civilian protestors? What reasons, if not strategic economic interest, account for the West’s reluctance to take action against these brutal regimes? Why should “a body of law that purports to be based on universal values of all humanity … be animated by exclusions, notions of civilization, and imperialism”?[54]

The AU’s response to the referrals against some African personalities is obviously political, but it is probably informed by the politicization of the ICC itself. If the Security Council had authorised a military intervention to stop the heinous crimes in Darfur when the crisis began, as some commentators advocated,[55] it would have achieved, at least, two ends. First, the authorization would have saved many lives and sent a strong message to al-Bashir that impunity is no longer an option. Second, it would have legitimised any post-conflict measures taken to bring perpetrators of the crimes to justice. Having failed to fulfil its original UN Charter mandate, the Security Council is now using the ICC to reassert its diminished authority, as it did with the International Criminal Tribunal for Rwanda (ICTR). These after-the-fact measures do not achieve much result or appease Africans; they are like learning geology after a devastating earthquake.

Perhaps, one way of building confidence in the ICC is for the OTP to strive to initiate timely investigations and prosecutions on genuinely grave cases without waiting for referrals from the politically charged UN Security Council. As Bassiouni remarks, “it is better not to have an ICC than to have it in the service of a political body that has hardly distinguished itself by adherence to the rule of law”.[56] When the Security Council takes the initiative, it undermines the ICC’s legitimacy and undercut the argument that it is free from bias. Here is why:

The fact that the Security Council can bar ICC activities on particular situations and the possibility that the Security Council can refer situations concerning states not party to the Rome Statute can create a perception that the ICC is a tool of the stronger Western states supporting the Security Council. Since the Security Council makes these decisions based on the political calculations and tradeoffs among the five permanent members, rather than a judicial investigation of the facts of a situation by the ICC, a perception that the interests of the permanent five is the more important determinant is unavoidable.[57]

5. Concluding Thoughts

International expectations of the ICC are very high. The objective that the Rome Statute assigns to the ICC is to end impunity for the perpetrators of the worst crimes known to humanity. Attaining this objective requires the Court to conduct high-quality investigations and prosecutions, to encourage effective domestic responses to the commission of the most serious crimes of concern to the international community as a whole, to be sensitive to the needs of victims of these crimes, and to be transparent in its activities. It is vital for the creditability of the entire Rome System that the Court is able to rise to these challenges.

Notwithstanding the current face-off, the ICC should not give up its efforts to dialogue with the AU and its Member States. The Court must not assume that all criticisms of its work are done in bad faith. In any event, all stakeholder – including African States Parties – have the right to demand improvements to an institution they were integral in creating. As Max du Plessis rightly noted, “the process of changing and improving an international institution requires meaningful and engaged debate”.[58]

Finally, international institutions, judicial or otherwise, have significant roles to play in establishing humane and just social orders. It is the absence of democratic accountability that largely accounts for rebellion, conflicts, and human suffering in many states. Taking international justice seriously entails taking democracy and good governance seriously. Since there can be no true justice without true democracy, the global community has legal and moral obligations to assist weak states achieve the kind of democracy that reinforces the rule of law. And if international criminal justice is a universal ideal, then the major powers ought not to take distinctive approaches to justice that reflect their values and interests.[59] If the two global infrastructures for maintaining peace (the Security Council) and curbing impunity (the ICC) continue to work selectively, neither will advance, let alone entrench, the rule of law. Double standard diminishes faith in the project of international criminal accountability and increases anti-ICC sentiments.

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