Originally Published on Wednesday, 23 July 2014 

The Relationship between the African Union and the International Criminal Court

Nsongurua Udombana

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]

2012. 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]