Letter from African Civil Society and International Organizations on the Relationship between the ICC and the AU
By Human Rights Watch
JULY 5, 2012
Dear African Foreign Ministers,
On the occasion of the 19th summit of the African Union, which will be held in Addis Ababa from July 9-16, 2012, African civil society organizations and international organizations with a presence in Africa write to address Your Excellencies on events that surround the relationship between the International Criminal Court (ICC) and the African Union (AU).
Efforts by the AU and African states to fight impunity
The African Union has made a commitment to ending impunity, as enshrined in its Constitutive Act (Article 4(h)(o)), and has illustrated this commitment on different occasions. Notably, in 2006 and 2007, at an AU meeting of heads of state in Addis Ababa, Sudanese President Omar al-Bashir’s bid to become the AU chairperson was rejected due to the atrocities that were occurring in Darfur, Sudan. More recently, the AU deployed 5,000 troops to pursue Joseph Kony of the Lord’s Resistance Army, who is wanted by the ICC for crimes committed in northern Uganda.The AU has also played a key role in pressing Senegal to investigate and prosecute Hissène Habré, the former president of Chad, for serious crimes.
Beyond the AU forum, individual African states have independently reaffirmed their commitments to ending impunity. This includes the requests by the governments of Uganda, the Democratic Republic of Congo, the Central African Republic, and Côte d’Ivoire to the International Criminal Court to investigate crimes committed in their countries.
A number of African states have incorporated genocide, war crimes, crimes against humanity, and cooperation with the ICC into their domestic law. Mauritius adopted such legislation in 2012, and other countries—including Burkina Faso, the Central African Republic, Kenya, Senegal, and South Africa—previously enacted such laws.
There is also a growing list of countries—including Botswana, Malawi, South Africa, Niger, and Burkina Faso—that have expressly stated that they will arrest individuals subject to arrest warrants for genocide, war crimes, and crimes against humanity by the ICC if they enter their territory. While some have tried to assert that the ICC is biased against Africans, African countries have voluntarily demonstrated their commitment to the ICC delivering justice for crimes committed on their territories.
In June 2012 the government of Malawi took a courageous stand by indicating it would not host the AU summit if the AU insisted that ICC suspect Sudanese President Omar al-Bashir be welcomed to Malawi for the event. While the AU has called for states not to cooperate in the arrest of President al-Bashir, the request is contrary to the fight against impunity and the fulfillment of international legal obligations of African states that are ICC states parties.
In addition, the Special Court for Sierra Leone—the hybrid criminal court established by agreement between the United Nations and the government of Sierra Leone—handed down a judgment in April 2012 against former Liberian President Charles Taylor for war crimes and crimes against humanity for his role in supporting rebels in Sierra Leone that committed heinous crimes.
In June 2012 Fatou Bensouda from the Gambia became the ICC’s chief prosecutor. Ms. Bensouda was the AU's endorsed candidate. We encourage all states to accord her office the necessary support to undertake her duties and responsibilities effectively.
The AU’s indication of its commitment to end impunity and its leadership in trying to resolve conflicts and secure peace on the continent is important. The below discussion provides further recommendations to promote justice for victims of the gravest crimes.
The need to uphold cooperation obligations under the ICC Statute
To preserve the effectiveness of the International Criminal Court and its ability to deliver justice, there must be cooperation with the ICC and respect for the court’s decisions. We note the recent public commitment made by President Kabila of the Democratic Republic of the Congo to arrest Bosco Ntaganda, a suspect wanted by the ICC since 2006. The DRC should be supported in this endeavor.
We, the undersigned organizations, are concerned about decisions by the African Union calling on member states not to cooperate with the ICC, especially with respect to the pending arrest warrant for Sudanese President Omar al-Bashir. The AU maintains that as a head of state, al-Bashir enjoys immunity from prosecution. However, this position is in conflict with decisions by the judges of the ICC (for example, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, December 13, 2011, paras. 22-43). The AU has recognized that ICC states parties should balance their obligations in such a way that promotes justice and not impunity (Assembly/AU/Dec.296(XV), para. 6).
We note the concerns raised by the AU in respect of requests for deferrals of the ICC’s investigation into crimes committed in Darfur and understand that responsibility for resolving this matter rests with both the United Nations Security Council as well as the AU. Meanwhile, matters of interpretation of the ICC statute, such as with regard to immunity, should be raised directly with the ICC, pursuant to article 119 of the ICC’s Rome Statute, and determinations by the judges regarding the interpretation of the statute should be respected. Accordingly, we call on ICC states parties to decline to renew the AU call for non-cooperation in the arrest of ICC suspects at the upcoming summit.
Proceed with caution on expanding the jurisdiction of the African Court
We understand that the draft protocol for the extension of the jurisdiction of the African Court of Justice and Human Rights (African Court) to prosecute genocide, war crimes, and crimes against humanity was approved by African justice ministers and attorneys general in May 2012.
We believe there remain a number of issues regarding the establishment of a just, credible, and effective regional criminal court. Firstly, it is necessary to weigh the implications of the expansion of the African Court’s jurisdiction given the challenges the current court faces in implementing its human rights mandate. Specifically, a regional criminal court would involve financial obligations that may hamper the resources available for effective dispensation of the African Court’s human rights mandate. States should thus seriously weigh the costs of the court’s expansion and the burdens it will place on the African Court, which has barely begun work under its current mandate.
Secondly, it is necessary to clarify the proposed expanded jurisdiction with regard to the ICC. Increased opportunities for justice are positive in principle, but it will be important to ensure that the court’s expanded mandate does not in actuality impede justice. Specifically, we encourage that an expanded criminal jurisdiction of the African Court be rendered expressly complementary to the ICC and that obligations by African ICC states parties are not undermined through the expansion of the African Court.
The undersigned organizations furthermore call for a transparent and open process of consultation as the next steps are taken with regard to expansion of the African Court.
The Habré case: Press Senegal to prosecute or extradite
In 2006 the African Union called on Senegal to prosecute Habré on ‘behalf of Africa’. Since then victims have filed complaints in Senegal accusing Habré of crimes against humanity and torture. Yet Senegal has not moved forward with prosecution nor has it extradited him to Belgium, which stands ready to try him. We call upon the African Union to ensure that Senegal under the new leadership of President Macky Sall fulfillsits pledge to prosecute Habré.
It is our hope that this information will be useful in your deliberations and will help ensure that justice prevails on the continent. We wish you fruitful deliberations.
Action Contre l'Impunité pour les Droits Humains, Democratic Republic of Congo
Advocates for Public International Law Uganda, Uganda
Association Congolaise pour l'Accès à la Justice, Democratic Republic of Congo
Association pour les Droits de l'Homme et l'Univers Carcéral, Brazzaville, Democratic Republic of Congo
Burundi Coalition for the ICC, Burundi
Centre for Accountability and Rule of Law, Sierra Leone
Centre for Human Rights and Rehabilitation, Malawi
Civil Resource Development and Documentation Centre , Nigeria
Club des Amis du droit du Congo, Democratic Republic of Congo
Coaliton Béninoise pour la CPI, Bénin
Coalition Burundaise pour la CPI, Burundi
Coalition Congolaise pour la CPI, Democratic Republic of Congo
Coalition of Eastern NGOs, Nigeria
Coalition for the International Criminal Court, with offices in Benin and the Democratic Republic of Congo
Coalition Ivoirienne pour la CPI, Côte d’Ivoire
Coalition for Justice and Accountability, Sierra Leone
Human Rights Network – Uganda, Uganda
Human Rights Watch, with offices in the Democratic Republic of Congo, Kenya, Rwanda and South Africa
International Center for Transitional Justice, with offices in Côte d’Ivoire, Democratic Republic of Congo, Kenya and Uganda
International Commission of Jurists, Kenya
International Crime in Africa Programme, Institute for Security Studies, South Africa
National Coalition on Affirmative Action, Nigeria
Nigerian Coalition on the ICC, Nigeria
Réseau Ouest Africain des Défenseurs des Droits Humains, Togo
Rights and Rice Foundation, Liberia
Southern African Centre for the Constructive Resolution of Disputes, Zambia
Southern Africa Litigation Centre, South Africa
Uganda Coalition for the International Criminal Court, Uganda
West African Bar Association, Nigeria
*The organizations that have signed this letter are among the most active participants in an informal network of African civil society organizations from across the African continent and international organizations with a presence in Africa who work on justice for international crimes.