Last January, Coalition staff traveled to Ethiopia as part of a civil society delegation to advocate for greater support for the ICC and the Rome Statute system of international justice at the 22nd African Union (AU) summit. Despite strong statements of support from states such as Botswana, the meeting underscored that the AU-ICC relationship is in need of much improvement.
African support for justice
Africa is home to 34 ICC member states, more than any other region in the world.
Many of these were instrumental in the adoption of its founding treaty in 1998 and have continued to support the Court in different ways.
However, recent years have seen unfair and unfounded criticism of the Court by some African leaders who perceive an anti-Africa bias in the prosecutor’s investigations.
Much of this adversarial stance has been channeled through, or encouraged by, the AU Assembly.
Kenya at forefront of continuing push for immunity
Spurred on by the Kenyan government, in October last year the AU called for an end to cooperation with the Court and for the Rome Statute to be amended to provide immunity for sitting heads of state and other high-level government officials.
That call was further promoted by African states during the annual meeting of ICC members at the Assembly of States Parties (ASP) in November.
However, the amendment was not voted on during the Assembly because it had not been submitted to the ASP Bureau in time.
Instead, what were achieved were changes to the Court’s rules on the presence at trial of senior government officials while in office.
These rule changes have since been put into effect in the trial of Kenyan Deputy President William Ruto. Last month, the prosecutor applied to Trial Chamber V(a) for permission to appeal the ASP decision seeking to excuse Ruto from trial.
At the conclusion of the ASP last year, the Coalition questioned the process that led to the rule change, fast-tracked due to a concerted political campaign and intended to have an impact on ongoing trials.
At the January summit, the AU continued its push for immunity, deciding to follow up with African ICC member states on amendments to the Statute itself.
Kenyan President Uhuru Kenyatta, who is awaiting the beginning of his trial, used his speech to reiterate the need for such amendments.
Last week, Kenya submitted a formal proposal for amendments to the Rome Statute to the UN Treaty Office, removing any doubt as to their intentions.
For civil society, no immunity remains the very essence of the Rome Statute system. Said Human Rights Watch’s Elise Keppler:
“The AU took a decision to continue pushing for immunity for officials before the ICC. Immunity sets the stage for impunity – it does not belong anywhere near the ICC statute.”
These included the prosecutor’s use of privately funded intermediaries to assist with investigations, which the letter stated could damage the Court’s impartiality, or its appearance at the very least.
It also accused the Court of using low evidentiary standards at trial and criticized the ability of the prosecutor to begin an investigation without a request from an ICC member or the UN Security Council.
If the ICC does not address those concerns, the letter’s authors threaten that they “shall not extend further cooperation to the ICC, whether obliged by treaty of otherwise.”
In the end, the letter was not tabled for adoption before the AU Assembly or sent to the Court.
Nevertheless, its existence demonstrates the animosity towards the Court and the lengths the AU might go to neuter its ability to prosecute individuals regardless of their position or stature.
Call for mass withdrawal founders
The summit also saw Sudan and Rwanda—neither ICC members—calling for a mass withdrawal from the Rome Statute.
These proposals failed to gain traction, just as they had at the fall 2013 AU summit when the Coalition had campaigned strongly against them.
While mass withdrawal seems unlikely for now, civil society will remain vigilant in case support for such a move grows at the AU or in African capitals.
Need for African states parties to stand up for justice
While more extreme anti-ICC measures failed to gain traction, the January summit largely maintained the status quo in the AU’s sour relationship with the Court.
The regional body continues to reject plans to open an ICC liaison office in Addis Ababa or to cooperate with the ICC in the arrest, surrender and transfer of suspects to The Hague.
A good working relationship between the ICC and African states is important not only to the Court, but to the many victims of grave crimes on the African continent.
Ahead of the next AU summit this summer, the Coalition will continue to coordinate civil society efforts to galvanize support for the ICC and the Rome Statute system among an AU membership that boasts a significant number of ICC states parties.
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