The relationship between the African-Union (AU) and the International Criminal Court (ICC) has suffered a major setback with the issue of arrest warrants by France and Spain for international crimes against Rwandan Government officials in 2006 and the indictment of Omar Al Bashir, President of Sudan, by the ICC in 2009. The resultant feelings of mistrust and the characterisation of the ICC as a neo-colonial instrument that selectively targets African leaders has led to the AU’s subsequent display of non-cooperation with the ICC. This post explores the human rights perspective to the two institutional responses recently articulated by the AU.
Firstly, the attempt to formalize the creation of the African Court of Justice and Human Rights in 2008 (ACJHR) and the subsequent extension of its jurisdiction at the Union’s 23rd Summit in June 2014 is the AU’s first response to International Criminal Law. Nevertheless, the creation of a court with such an enormous mandate has often been described as a model fated to fail owing to the numerous capacity and affordability challenges.
Article 28 of the Protocol on the Statute of the ACJHR, which defines the jurisdictional ambit and the inclusion of international criminal law, raises doubts regarding the financial resource base and the administrative capacity of the court to meet these new obligations. The fiscal and administrative implications are magnified by the fact that the African countries are the constant subject of human rights litigation. Therefore, inevitable questions of efficacy are raised vis-a-vis the ability of the court to counterbalance the deteriorating human rights status quo of the region.
With 34 African states being parties to the Rome Statute of the ICC, the ACJHR will be experiencing a massive operational overlap with the ICC. This necessitates re-examining the relationship between the regional court and the international court. However, the ACJHR Protocol maintains an inexplicable silence on the issue of the ICC. Hence, the dominant belief has been that the jurisdictional expansion ultimately proves to be a hasty attempt to evade the ICC, which is not effectively prevented from trying any subsequent case.
The theoretical justification for continuance of ICC jurisdiction lies with the foundational principle of complementarity as provided for under Article 1 and the Preamble of the Rome Statute which establishes complementary jurisdiction of the ICC to the national criminal jurisdictions. Furthermore, Article 17 of the statute precludes the ICC from admitting a case only if the matter is being investigated by another “State” in exercise of its jurisdiction. However, such preclusion of the ICC jurisdiction sought to be achieved by the African Union through such expansion of the ACJHR jurisdiction does not effectuate with respect to trial of criminal cases by other “courts”, thereby, illustrating the haste of the diplomatic process.
Secondly, another response emerges from the decision taken by the AU at its 23rd Summit with the addition of Article 46A to the Protocol. The provision grants immunity from the regional court’s jurisdiction to any serving AU Head of State/Government, anybody acting/entitled to act in their capacity, and other senior state officials during their tenure of office.
This will not affect parties to the Rome Statute as Article 27 of the Statute discusses the irrelevancy of the official capacity of individuals in cases of criminal responsibility. This reflects statutory endorsement of the principle of “access to justice” in such cases of gross human rights violations. However, the presence of Article 98 frustrates the institutional objectives on human rights of the ICC as it enables non-member states (such as Sudan) to refuse cooperation by claiming such immunity.
The AU granting of immunity is tantamount to frustrating important means of litigation for the victims and their families. It should be noted that the UN Convention Against Torture, which enjoys substantial African membership, codifies the rights of victims of torture to seek redress in Article 14. Such granting of immunity merely postpones prosecution at the ACJHR level. Demonstrating sensitivity to the politicisation of the United Nations Security Council referral and improbability of a State Party Referral, it often keeps the limited route of “complaints” to the ICC open to the affected individuals compelled to depend upon the discretion of the prosecutor to initiate a case depending upon the information received. Therefore, the African leaders are arguably guilty of failing to provide an “effective remedy” to the ill-resourced African citizenry under Article 2(3) of the International Covenant on Civil and Political Rights 1966.
Typically, many African leaders enjoy prolonged periods of power, staying in office for ages. Therefore, the Unions’ immunity decision effectively leads to a permanent denial of justice at the domestic level, condemning the masses of human rights victims to an uncertain future at the ICC. The disputed summit in Equatorial Guinea evidences the disparaging status of the AU as a guarantor of human rights in the continent. Arguably, the AU’s recent actions have been contrary to their commitment to reject such impunity codified under Article 4(o) of the African Union constitutive act.