African Union protecting genocidal leaders

Although it is debatable whether it warranted an
extraordinary session of the African Union (AU)
Assembly, the relationship between Africa and the
International Criminal Court (ICC) is an important one
deserving robust debate. If this debate were to be
framed appropriately and directed towards rectifying
various problems in the ICC, thereby making it more just
and effective, it would be of huge service to both Africa’s
quest to end impunity and the international legal order
in general.
The extraordinary session that the AU Assembly (the
highest decision-making body of the AU) held on 12
October 2013 was mainly dedicated to Africa’s
relationship with the ICC. Unfortunately, the outcome of
the summit showed that the substantive issues of public
interest were not the factors that informed the decision
to call the extraordinary session. Two other motivations
prompted the convening of the summit by African
governments.
The first of these motivations is bailing out the Kenyan
leaders currently on trial at the ICC in The Hague – the
extraordinary summit was called upon the request of
Kenya with the support of the Eastern Africa region.
According to the Rules of Procedure of the Assembly, the
support of two-thirds of AU member states is required
for calling an extraordinary session. The summit was
accordingly convened when the required majority had
been reached.
Kenya campaigned aggressively for this summit to use
the AU platform to mobilise against the ICC and to
secure wide support for the bid by President Uhuru
Kenyatta and Vice President William Ruto to dodge the
ICC process. Most immediately, they wish to be excused
from having to attend all the sessions of their trials in
The Hague. If they are not granted such relief, they will
face a serious problem in discharging their
responsibilities in leading the Kenyan government.
Understandably, there is strong sympathy for the
undesirable consequences that this may have for Kenya
and its people. In seeking to secure the two leaders this
relief, African states are also acting in the interest of the
Kenyan nation.
The main other motivation for African leaders in
supporting the extraordinary summit is, of course, self-
interest. There is no guarantee that the ICC will not
pursue other African leaders as well. The supposition
that self-interest is the motivation behind the support of
African leaders for Kenya’s bid has been borne out by
the decisions they adopted at the summit. In one of
these decisions, African leaders now wish to reverse the
course of international law and relieve serving heads of
state and government from prosecution for serious
crimes. In the words of the summit’s resolution, ‘no
charges shall be commenced or continued before an
international court or tribunal against a serving
president or senior member of a government in power’.
Under the Rome Statute (Article 27), the issue of the
immunity of heads of state for ‘grave’ international
crimes has been put to rest. It is very difficult to see how
this can be reversed within the existing rules of the ICC,
short of a comprehensive revision of the Rome Statute.
The other AU decision – on a UN Security Council (UNSC)
deferral of the cases against the leaders of Kenya and
Sudan – is equally baffling. First, UNSC deferral under
Article 16 of the Rome Statute does not end the cases. It
only leads to the suspension of an ongoing investigation
or prosecution for an initial period of 12 months.
Significantly, suspension of the trials may also result in
loss of the evidence on which the ICC Prosecutor may
rely on. Second, the UNSC can exercise its authority
under Article 16 only after determining that continuing
with the prosecution constitutes a threat to international
peace and security within the framework of Chapter VII
of the UN Charter. Looking at the cases against Kenyatta
and Ruto, there is little evidence to suggest that their
trial would lead to such a threat – unless UNSC members
determine that the threat of terrorism facing Kenya
(following the Westgate attacks) is reason enough to
warrant the deferral.
The concern over the trials’ interference in Kenya’s
leaders’ ability to effectively discharge their
responsibilities is best left to the Appeals Chamber of
the ICC to address. The Appeals Chamber is currently
considering the Prosecutor’s appeal to reverse the Trial
Chamber’s decision relieving Kenyatta and Ruto of the
obligation to attend all their trial sessions.
Sadly, the heads of state and government who attended
the summit defended their position to insulate
themselves from ICC prosecution based on the political
ideal of ‘African solutions to African problems’. Hiding
behind this to serve their self-interest is both a misuse
and a perversion of the ideal. Such instrumentalisation
of this ideal erodes its moral force as well as its political
and institutional significance for enabling the continent
to take the lead in dealing with the challenges it faces.
In their preoccupation with expediency and self-
protection, Africa’s leaders have failed to use the summit
appropriately to focus on and prioritise the formulation
of workable recommendations for rectifying current
drawbacks in the ICC system. They have also failed to put
Africa’s relations with the court on a more solid ground,
whereby the ICC could be used to fill the impunity gap
arising from the failure to address issues of justice for
serious crimes nationally and afford victims an
opportunity they would not otherwise have.
Clearly, both the decision on the immunity of heads of
state and government and the one on a UNSC deferral of
the trials of current leaders sought by the ICC are
directed at insulating leaders from ICC processes. This is
a clear case of the AU being used as a forum of elite
solidarity for self-preservation, along the lines of the
description of its predecessor, the Organisation of
African Unity (OAU), as a club for dictators.
In reducing the issue of Africa’s relationship with the ICC
to elite interests and political expediency, Africa’s
leaders have betrayed the continent’s wider interests,
namely the achievement of a fairly applied system of
international criminal justice that allows societies in
transition to debate and formulate processes of justice
and reconciliation without compromising accountability.
At a policy level, these decisions represent an instance in
which the tension between human security and regime
security upheld by the AU is resolved in favour of regime
security. This constitutes an erosion of the AU’s much
acclaimed normative changes, notably its right to
intervene in member states under Article 4(h) of the
Constitutive Act embodying the principle of non-
indifference.
Such an elite-centred formulation of the debate on
Africa’s relationship with the ICC is unlikely to yield any
constructive or positive outcomes. While the affirmation
by AU Assembly chairperson Ethiopian Prime Minister
Hailemariam Desalegn that ‘our goal is not and should
not be a crusade against the ICC’ is assuring, particularly
in the light of the much talked about threat of mass
withdrawal of African members from the Rome Statute,
the main decisions of the summit remain controversial.
This, along with the plan to review progress on the
implementation of their decision at another meeting that
may be called next month, means that the relationship
between African states and the ICC is sure to traverse a
more turbulent path in the months to come unless the
Appeals Chamber upholds the decision of the Trials
Chamber creating an opportunity to ease the opposition
being mobilised against ICC.
Solomon Ayele Dersso is Senior Researcher, Conflict
Prevention and Risk Analysis Division, ISS Addis Ababa
This article first appeared in ISS Today, the weekly online
newsletter of the Institute for Security Studies.

Source: www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=423957&sn=Marketingweb+detail&pid=90389

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