he international criminal justice system has been developing at an exponential rate; and Africa remains a wellspring of such developments. At the International Criminal Court (ICC), which remains focused mostly on African situations, the first four months of 2016 have been eventful.
The trial of former Ivorian president Laurent Gbagbo and co-accused youth leader Charles Blé Goudé has began, while that of Jean-Pierre Bemba Gombo – the former vice-president of the Democratic Republic of Congo – ended with him being found guilty of war crimes and crimes against humanity committed in the Central African Republic.
The Kenyan case against the deputy president, William Ruto, and co-accused radio executive Joshua arap Sang was terminated without prejudice to re-prosecution. More recently, the Prosecutor announced the opening of a preliminary examination into the situation in Burundi.
There is increased momentum for the African Court to become operational
International criminal justice is not only up to the ICC, however, but is primarily a matter for national institutions and regional entities. In fact, synergy rather than hegemony should drive the international criminal justice architecture.
The African Union (AU) is the first organisation of its kind to have initiated international criminal justice at the regional level – via an international crimes chamber to the African Court of Justice and Human and Peoples Rights. This is a significant development. A protocol adopted at the AU Summit of Heads of State and Government in June 2014 in Malabo, Equatorial Guinea is the founding instrument of this initiative.
To commence its operations, this African Court requires the ratification of the protocol by 15 states. While there are no current ratifications of the Malabo Protocol, nine African states have signed the treaty. Four of those were registered this year, which shows increased momentum for the African Court to become operational.
The Malabo Protocol has been met with some degree of criticism, however, notably on account of its immunity provision, which excludes sitting heads of state and other ‘senior government officials’ from prosecution by the court. Max du Plessis, a senior research associate at the Institute for Security Studies, describes the provision as short-sighted, and says ‘for now [it is] probably little more than a symbolic fist-shake in the face of the ICC.’ Other concerns include a lack of adequate provisions relating to victim participation, the effective exercise of jurisdiction of crimes such as terrorism and unconstitutional changes of government, and the sources of funds for the operation of the court.
The Malabo Protocol does, however, contain a progressive list of 14 transnational and international crimes. It also establishes an independent office of a public defender. These provisions are not found in any other treaty establishing an international crimes court. While pointing out serious challenges in the capacity of the court, Amnesty International has reportedthat ‘the regional criminal court can potentially play a vastly positive role on a continent persistently afflicted by the scourge of conflict and impunity for crimes under international law and other serious violations of human rights.’
International criminal justice is not only up to the ICC
Straddling national criminal justice regimes and the international one established by the Rome Statute (namely the ICC), the Malabo Protocol reflects the multiple and complex factors that characterise the search for international criminal justice in Africa. Given that most African states are implicated in all three regimes of international criminal justice, clarity is needed on how these could function in a complementary way.
At a recent Institute for Security Studies seminar in Addis Ababa, Ethiopia, Dr Salah Hammad, Senior Human Rights Expert at the AU Department of Political Affairs said, ‘The role of the ICC must be very clear as one that complements and supports national systems in Africa, to ensure it serves as a court of last resort, not first instance.’ What, then, is the place of a regional criminal court?
The tension between the AU, its member states and the ICC remains the thorn in the flesh of advancing international criminal justice in Africa. These tensions are based on the AU and its member states’ concerns regarding the work of the ICC. ‘We need to have real, sincere and serious dialogue about working together,’ Hammad added.
Before June 2014, decisions taken at AU summits repeatedly called for non-cooperation of member states with the ICC on the Bashir case. The decisions after the June 2014 summit have, however, probably had the greatest impact on international criminal justice in the continent. For example, the January 2016 AU decision on the ICC highlights ‘the urgent development of a comprehensive strategy including collective withdrawal from the ICC.’
This flows from the dissatisfaction of African states and the AU with the ICC, as vociferously expressed at the Assembly of States Parties (ASP) to the Rome Statute of the ICC meeting in The Hague in November last year.
Among its concerns, the AU questioned the wisdom of the ICC in proceedings against the president of Sudan and the prosecution of Kenya’s deputy president. Through an AU Open-ended Ministerial Committee of Ministers for Foreign Affairs, the AU has sought and been accorded a meeting with the United Nations Security Council (UNSC) to discuss these concerns.
The AU’s commitment to fighting impunity has been reiterated on several occasions
The UNSC referred the situation in Darfur to the ICC within its powers under the Rome Statute to refer or defer investigations and prosecutions at the ICC. The AU first requested this meeting with the UNSC five years ago in a bid to seek deferrals in the Darfur and Kenya situations, but did not get an official reply to this request. This further strained relations between the organisations. The Kenyan case has since been terminated.
‘The AU is not against the ICC,’ said Prof Vincent Nmehielle, Legal Counsel and Director for Legal Affairs at the AU Commission during his speech at the ISS seminar in Addis Ababa. Nevertheless, Nmehielle emphasised that the imbalance in the dispensation of international criminal justice remains a key reason why the AU and African states raise concerns about the ICC.
In the context of the role of the UNSC in the Rome Statute, he poignantly asked ‘whether the Security Council loves the victims of [international crimes] in Africa more than those in Syria and Iraq’ – alluding in part to the failure of the UNSC in May 2014 to reach consensus on referring the situation in Syria to the ICC.
The AU’s commitment to fighting impunity has been reiterated on several occasions. Citing the case against former Chadian president Hissène Habré at the Extraordinary Chambers, Nmehielle highlighted the commitment of the AU to the Courts of Senegal. In this example, he sought to allay fears on the immunity provision of the Malabo Protocol, noting that the International Court of Justice in the Yerodia case has established who a ‘senior government official’ is.
Differences between states in the interpretation of treaties is not unique to the Rome Statute. As the search for international criminal justice in Africa continues, further challenges should be expected. ‘A “them versus us” [approach] is the danger of international criminal justice in Africa,’ says Baba Guissé, Adviser to the ASP President.
As states work towards resolutions, they must remain true to the primary objective of the international criminal justice project: namely accountability for the unimaginable atrocities that millions of children, women and men have suffered.