(New York) – The African Union (AU), in advance of a meeting with the United Nations Security Council on September 23, 2016, should end consideration of a call for mass withdrawal of its members from the International Criminal Court (ICC), a group of African nongovernmental organizations and international groups with a presence in Africa said today.
In January, the AU decided to mandate its Open-Ended Committee on the ICC to develop a “comprehensive strategy” that includes withdrawal from the ICC. The committee met on April 11, and identified three conditions that it said should be met for the AU to avoid calling for withdrawal. These included a demand for immunity for sitting heads of state and other senior officials from prosecution before the ICC.
“AU efforts to undermine the only permanent criminal court for victims of atrocities are fundamentally at odds with the AU’s rejection of impunity, and with its decision to make 2016 as the AU’s year of human rights,” said Stella Ndirangu of the Kenya section of International Commission of Jurists. “The AU’s commitment to justice cannot be reconciled with protecting African and other leaders from accountability for mass atrocities before the ICC.”
Article 4 of the Constitutive Act of the AU expressly rejects and condemns impunity. The AU has also identified justice as one of its “shared values,” and 2016 as the “African Year of Human Rights with Particular Focus on the Rights of Women.”
Some African ICC members are taking important steps to limit impunity, the organizations said. At the AU’s summit in Kigali from July 10 to 18, several African countries – Botswana, Côte d’Ivoire, Nigeria, Senegal, and Tunisia – pushed back against a potential call by the African Union for a mass exit of African countries from the International Criminal Court. Burkina Faso, Cabo Verde, the Democratic Republic of Congo, and Senegal also entered reservations to the AU decision that was adopted at the summit to continue its consideration of ICC withdrawal.
In the period before the summit, 21 international and African nongovernmental organizations released a video featuring 12 African activists on the importance of the ICC and the need for African governments to support the court. The video, and a shortened version of it, have attracted more than 80,000 views on social media.
Withdrawal from the ICC is a decision to be made by individual countries and cannot be carried out by the AU. At the same time, a call from the AU for countries to withdraw or consider withdrawal would make it more difficult politically for African countries to show support for the court.
“The ICC remains the crucial court of last resort,” said Timothy Mtambo of Malawi’s Center for Human Rights and Rehabilitation. “The AU should work to strengthen and support the ICC, not urge its members to quit the institution.”
The work of the Open-Ended Committee on the ICC is the latest development in a backlash against the ICC by some African leaders, focused on charges that the ICC is unfairly targeting Africa. The backlash first surged in the wake of the 2009 ICC arrest warrant for President Omar al-Bashir of Sudan, on charges of serious crimes committed in Darfur. It reached a new level of intensity in 2013, when then ICC suspects Uhuru Kenyatta and William Ruto were elected president and deputy president of Kenya, respectively.
Six out of the nine African situations under ICC investigation came about as a result of requests or grants of jurisdictions by African governments – Côte d’Ivoire, Democratic Republic of Congo, Mali, Uganda, and two requests from the Central African Republic. In January, the ICC prosecutor opened the court’s first investigation outside Africa, in Georgia, and it is conducting several preliminary examinations of situations outside Africa. They include Afghanistan, Colombia, Palestine, and alleged crimes attributed to the armed forces of the United Kingdom deployed in Iraq.
At the same time, some powerful countries – including China, Russia, and the United States, all permanent UN Security Council members – and their allies have been able to avoid the reach of international justice. They have been able to do that by not joining the ICC and because they have a veto on the UN Security Council, which can refer situations to the court. The organizations encouraged the AU to raise these concerns during its meeting with the UN Security Council.
The three conditions the AU’s Open-Ended Committee on the ICC set at its April 11 meeting for remaining in the ICC are:
- Immunity under the ICC’s Rome Statute for sitting heads of state and heads of government and senior government officials;
- Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
- Reduction in the powers of the ICC prosecutor.
Blanket immunity for sitting heads of state has never been available before international criminal courts dealing with crimes under international law. No international tribunal – from the International Military Tribunal at Nuremberg, to the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the ICC – has allowed immunity on the basis of official position.
The AU in 2014 adopted a protocol to give its regional court authority to prosecute grave crimes, also while granting immunity for sitting heads of states and other senior government officials. That protocol, which needs 15 ratifications before coming into force, has yet to be ratified by any country.
Kenya has played a leading role in mobilizing AU attacks on the ICC since 2013. On September 19, the ICC issued a finding of non-cooperation by Kenya in the now-withdrawn case against Kenyatta to the ICC’s Assembly of States Parties. The charges in the case against William Ruto, Kenya’s deputy president, were vacated for lack of evidence in April.
The decision is the first ICC finding of non-cooperation related to the failure of an ICC member country to provide assistance to the prosecution’s investigations.
Affirmative Action Initiative for Women (Nigeria)
African Center for Justice and Peace Studies (Uganda)
Africa Legal Aid
Center for Accountability and Rule of Law – Sierra Leone
Children Education Society (Tanzania)
Civil Resource Development and Documentation Centre (Nigeria)
Coalition for the ICC
Coalition of Eastern NGOs (Nigeria)
Federation Internationale des Droits de l’Homme (FIDH)
Foundation for Human Rights Initiative (Uganda)
Ghana Center for Democratic Development
DefendDefenders-East and Horn of Africa Human Rights Defenders Network
Human Rights Watch
International Crime in Africa Program, Institute for Security Studies
International Commission of Jurists (Geneva/Johannesburg)
International Commission of Jurists-Kenya
Kenya Human Rights Commission
Kenyans for Peace with Truth and Justice
Legal Defense and Assistance Project (Nigeria)
Malawi Center for Human Rights and Rehabilitation
Kenya Human Rights Commission
Nigerian Coalition for the International Criminal Court
Rights and Rice Foundation of Liberia
Southern Africa Litigation Centre