Civil society has opposed plans to give immunity to senior government officials as part of the African Union’s (AU) proposed expansion of the African Court on Justice and Human Rights to include war crimes, crimes against humanity and genocide.
African justice ministers reportedly this week approved an amendment to the draft protocol of the African Court to include immunity for sitting heads of state and other high-level government officials while in office.
While the expansion of the African Court’s jurisdiction to include grave crimes has not yet been agreed to, states are expected to endorse the amendments at the next AU summit in Equatorial Guinea from 20-27 June.
In a letter to AU justice ministers and attorney generals last month, we joined 40 other civil society groups expressing concern regarding the immunity provision:
“The irrelevance of official capacity is at the core of making accountability for the gravest crimes meaningful. The alternative would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely. Such impunity is further inconsistent with the needs of victims and ensuring justice for the gravest crimes.”
The letter further maintained that the principle of no immunity for grave crimes is well established in international law. The ICC Rome Statute provides no immunity based on present or past official capacity.
A number of African states also bar immunity for serious crimes.
Stella Ndirangu, program manager at the Kenyan Section of the International Commission of Jurists:
“Even domestic law in Kenya and South Africa bars immunity for sitting officials before domestic courts on grave crimes. African governments should not roll back important progress in ensuring perpetrators can be held to account.”
The civil society groups also expressed concern that taking criminal jurisdiction over grave crimes could overburden the African Court, and urged the AU to strengthen national courts as a first line of defense against war crimes, crimes against humanity and genocide.
Support for the ICC was also mentioned as vital to efforts to tackle impunity.
The AU has had a contentious relationship with the ICC. The inclusion of head of state immunity in the proposed expansion of the African Court is seen by some as an end run around the ICC, which some AU member states accuse of unfairly targeting Africans.
Stephen Lamony, the Coalition’s senior adviser on AU, UN and Africa situations:
“Insulating heads of state and senior government officials alleged to have committed serious crimes from trial is outrageous,” said Stephen Lamony. Africa should be moving forward in the fight against impunity, not regressing. How does one determine who is a senior official and who is not?”
What do you think of the plans to give immunity to sitting heads of state accused of war crimes, crimes against humanity or genocide?