Shedding Light on Tensions Between the African Union and the ICC

The current tensions between the African Union and the International Criminal Court are often the object of international criminal lawyers’ discussions, and are particularly seized upon by skeptics and critics of the Court. For the Court and its supporters however, it has also been the subject of much reflection and concern, and this up to the highest levels (see ICC President Song’s opening remarks at the ICC-NGO biannual meetings a few weeks ago). Tensions and frustrations are flaring, and there seems to be no end to the standoff between the UN Security Council and the ICC on one side, and the African Union and Sudan on the other.

In the midst of these frictions that clearly threaten the ICC’s credibility in Africa, the Institute for Security Studies published last week an excellent Position Paper titled “An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC”, written by three African international law experts, namely Dapo Akande, Max du Plessis and Charles Chernor Jalloh.

As the title very clearly suggests, the authors give a very detailed analysis of the African Union’s position towards article 16 of the Rome Statute, in particular as it relates to the current tensions arising from the ICC’s involvement in Darfur.

Before giving some of my personal thoughts on the study’s findings, I first have to say that this report is brilliant and enlightening. It takes a very clear and rigorous approach to the raised questions on the role article 16 has to play, and makes the case for the African Union’s position without falling into the usual anti-West postcolonial political rhetoric that I find too often pollutes the debate and makes the real legal case inaudible. Although some would say there’s nothing new in the study for anyone who has followed AU-ICC relations closely, I still find that it puts a fresh perspective and offers a coherent analysis that puts the difference pieces of the puzzle in order.

I would recommend the reading of this report to anyone interested in understanding the state of ICC-AU relations, and more specifically, the legal aspects of the AU’s position towards the ICC.

I won’t summarize and go over the entire report, but briefly mention three main ideas that I think structure the paper and that particularly shed light on the ongoing conflict:

 

1) African States are committed to fighting impunity

Although the Paper, unless I am mistaken, is not a direct emanation of African countries or the African Union, it does have some reassuring words regarding the commitment of African States to the project of international criminal justice. The authors go to great length, at different points in their demonstration, to show that African States are committed to the prosecution of individuals responsible for the commission of grave international crimes, and that they played in the past a key role in the establishment of the International Criminal Court, both prior and after the Rome Conference in 1998. To support this, they cite a variety of examples and important facts, not least of which that 31 African States are parties to the Rome Statute, that 3 of them self-referred their situations (DRC, CAR, and Uganda), or that Côte d’Ivoire, a non-party lodged a declaration accepting the ICC’s jurisdiction.

This is not denying that there is a problem between the way African States are starting to perceive the ICC – but it does seem to put into perspective what some of the most pessimistic tend to argue: that the ICC is very negatively and widely perceived as a Western imperialist tool.

2) It’s the Security Council, Stupid!

Another aspect of the crisis that is clearly pointed out in this Policy Paper is that the tensions between the AU and the ICC are not really about the ICC per se: it’s really about tensions between the AU and the Security Council, and the latter’s refusal to even discuss AU recommendations, made worse by its past usage of Article 16. In this standoff, the ICC is more a hostage than an active participant. As the Paper argues:

Today, from the perspective of many African leaders, the ICC’s involvement in Sudan has come to reflect their central concern about the UN – the skewed nature of power distribution within the UNSC and global politics. (…) The result is that the uneven political landscape of the post-World War II collective security regime has become a central problem of the ICC.” (p. 6)

It is important to remember that the ICC had nothing to do with becoming engaged in the Darfur situation: it had no jurisdiction to do so. It’s the UN Security Council who referred the situation to the ICC, as made possible by Article 13(b) of the Rome Statute, with its 2005 Resolution 1593.

The Paper makes it clear that the escalation of the tension between the AU and the Court is due to the Security Council’s obstinate refusal to discuss, let alone agree to, the AU’s case for the deferral of the proceedings against Sudanese President al-Bashir, and this in the light of the past questionable usage of Article 16 to the benefit of the United States, with Resolution 1422 and even within Resolution 1593.

It also explains the motivation behind the AU’s proposal to amend Article 16 to allow the UN General Assembly to defer proceedings – if the UNSC refuses to discuss the matter.

3) This is not just about Sudan

Lastly, the authors make a compelling case that even if the debate on the use of Article 16 was spurred by the ICC’s intervention in Sudan and the indictment of al-Bashir, it is not just about Sudan, and is the consequence of the difficult compromise between the need for peace and justice that underlies the existence of Article 16.

The Position Paper argues that

it is important to pay attention to the AU’s concerns and its proposal because the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the UNSC in matters relating to the ICC – are likely to arise in the future with respect to other situations” (p. 6).

We are at the heart of the Peace versus Justice debate, and the sometimes necessary compromise between the two, and how we achieve such a compromise in a way that allows for peace and justice to support rather than annul each other. It is an eternal and far-reaching debate that is the source of much literature and discussion.

A Few Concluding Remarks:

  • The current situation in Sudan, especially with regard to the future referendum on independence in the South, poses a challenge to international justice and how it is supposed to act. Although an international criminal lawyer by training, I am not a social scientist and not an expert of Sudan. I will leave the debate of whether arresting Bashir now would make things worse or better to far more knowledgeable people.
  • Although the Position Paper presents the AU position in a neutral, legal manner, allowing me to see more clearly in this debate, I do not doubt that the AU’s intentions are not all founded on good faith. I remain convinced that one thing that rattles the AU is that the Court went after a sitting Head of State, and that they did not expect that. Although that is omitted in the Position Paper, I do think it is still a strong underlying factor in the AU’s rhetorical warfare against the Court.
  • Lastly, this blog post does not reflect the richness or all the interesting points of the Position Paper – so do read it!

More reading:

  • See Dapo Akande’s, one of the authors, presentation of the Policy Paper here;
  • See Bill Schabas’ views on the Policy Paper here;
  • Dapo Akande’s reaction to Bill Schabas’ comments here.

Follow me on Twitter @xrauscher_!

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  1. #1 by Daniel on 5 November 2010 - 04:42

    In other words, the solution lies in the reform of the UN? Therefore, in the hands of the Western countries?

    • #2 by Xavier Rauscher on 5 November 2010 - 09:50

      Well, not quite.

      First of all, the reform of the UN is not entirely dependent on Western countries, even if 3 of them are members of the P5. The other two – Russia and China – are not Western, but they’re not showing too much enthusiasm for UN reform either, as far as I know. If anything, they’re showing even less enthusiasm than the other three.

      Secondly, everyone seems to agree that the UN needs to be reformed, the question is how, with whom, and to what extent. But even if it was reformed, all the problems wouldn’t magically disappear.

      In the near future, it might be a positive gesture of goodwill if the Security Council accepted to debate the AU proposal, even if they vote negatively on it after the debate. That being said, considering how far this has gone and how exacerbated tempers are, especially on the AU side, it seems a little too late for that now.

      For the moment, there’s no easy way out. All we can do is sit tight and wait for more fruitful circumstances.

  2. #3 by Camara Mohamed on 5 November 2010 - 14:27

    First of all, the one thing to say is that on the time of the old African Unit Organization, this kind of tension between AU and the ICC would never exist. The regional diplomacy was not as developed as now. And even considering that the old organization came to react, there wouldn’t be such a strong conviction we can notice in the AU’s recent position toward the ICC’s role.

    Until I read your post, still I used to think that the debate turns around wondering, rather Peace or Justice, since we know that AU’s advanced diplomacy turns back at the beginning point each time the ICC delivers an international arrest warrant, or some actions relatives to it.
    That’s what has been noticed, until now at least in the scope of the Sudan conflict.

    Therefore, the debate should be reconsidered, unless international jurists turn to be philosophers.

    In the last 10 years, AU has succeeded to make peace its main objective. It seems like the AU has made its own choice in favor of peace. Therefore, justice seems to be neglected. When zooming into the constitutive act of AU, especially on the preamble, principles, and objectives, we find that the multilateral diplomacy of the AU emphasizes on making, maintaining and establishing peace all around the continent. On the other hand, it seems like African states have decided to resolve their own political problems. And “there” is the sticking point because when you have decided to do something, you should realize it ! For example how to interpret Charles Taylor’s escape attempt in Nigeria? Wasn’t it a second chance for him to escape from international justice ? How about the Hissen Habre trial. When is it for ? Not only Belgium has brought Senegalese government to the International Court of Justice, but also, the Senegalese government has answered that their not ready yet, due to the lack of contributions in financing the trial. So, when there is will, there’s no mean. And there appers the ICC. Its interventions appear to hurt in such situations. And what about the last YAGOGOMBE decision of the African Court on Human and Peoples’ Rights : the court couldn’t even find a forum prorogatum in order to establish its own competence.

    But let’s try another analysis. Not less than 5 African leaders are brought in front of ICC. But if we take the example of Ratko Mladic for example (even if it concerns the ICTY ), his surrender “must be negotiated”. And African countries know that. That’s why none of the Presidents would accept to be brought in front of the ICC. And if anyone breaks the resolutions, that would be considered like a betrayal. So this kind of climate wouldn’t have no more consequences, but war : in my opinion, the principle of equal sovereignty between states and the principle that bans the use of force between states could both be called into question.

    At the end, finally we can say that there was an institutional mimesis of the African Peace and Security Council toward the UNSC that was somehow misunderstood. And yes at that point we can say that the problem is not a direct tension between the ICC and the AU, but between the UNSC and AU. What appears to be a Western countries’ domination, is in reality a question of skills (competences). So if the UN Charter should be reformed, those problems should be put into negotiation talks. Plus, the UN charter was adopted in 1945 against 2000 for the AU’s constitutive act : a bit more than a half century. And the UN charter is closer (but postwestphalian) to a Westphalian system while the AU constitutive act goes further than that due to the high number of nongovernmental armed groups in Africa.

  3. #4 by Leila Lynn on 27 November 2010 - 06:18

    While it is clear that Africa forms the largest bloc of ICC member states and that this year s review conference of the Rome Statute has taken place in Uganda other facts are often overlooked. For instance it was the Democratic Republic of Congo s DRC 60th ratification of the Rome Statute that triggered the Statute s entry into force and made the human rights community applauds the birth of something impossible to envision fifty years earlier. Therefore it is not an overstatement to say that the construction of international criminal justice has crossed the Rubicon in Africa alea jacta est!

  4. #5 by Kevin Coffey on 5 January 2011 - 16:52

    Very interesting blog. I am studying African commitment to the ICC at the moment, and I think it is certainly debatable whether the countries within the region by and large are committed to ending impunity. While the 31 ratifications of the Rome Statute is certainly a strong indicator of enthusiasm for the project, other indicators suggest that African leaders motivations’ towards this institution are more concerned with expediency (self-referrals involving rebels, outcry timed for once first head-of-state is issued an arrest warrant). As a result, commitment and enthusiasm may be a bit more shallow than one would assume.

    • #6 by Xavier Rauscher on 5 January 2011 - 17:09

      Thanks for your comment, Kevin.

      Since the 1990s, international criminal justice has been manipulated with more or less success as a political tool, both on an international and domestic scale. The ICC in Africa is no exception.

      That being said, regarding the commitment of African States to the struggle against impunity, distinctions must be made between different countries, and between the elites/leaders and the population (see the recent situation in Kenya).

      I’m currently reading all the statements given at the recent Assembly of States Parties by the members of the ICC. Some statements from African states, such as the Congolese statements, are particularly interesting.

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