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!
- 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.
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