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The African Union and the International Criminal Court: what is at stake?

Fatou Bensouda, ICC chief prosecutor (left) at an AU event

Fatou Bensouda, ICC chief prosecutor (left), at the ICC event held by the Permanent Mission of the African Union to the United Nations in New York on 4 June 2012.
[(CC BY-NC-ND 2.0) Coalition for the ICC]

Written by Anne Vernet and Eric Pichon,

[ Updated 24 May 2018 ]

The permanent International Criminal Court (ICC) was established in 1998 by an international treaty now known as the ” Rome Statute “. This statute entrusts the ICC with the mission “to investigate, prosecute and try individuals accused of […] the crime of genocide, crimes against humanity, war crimes” and, since the 2010 revision (subject to ratification after 2017) “the crime of aggression” (i.e. military violation of the sovereignty of a State by another State). In the wake of the Rwandan genocide , the adhesion of African states was quite considerable: out of 54 African States, 33 are “State parties” to the Rome Statute, most of them sub-Saharan.

The Court has sat since 2002 and is investigating 11 cases , ten of which are located in Africa: Burundi, Sudan, the Democratic Republic of the Congo, Uganda, the Central African Republic (2 cases), Kenya, Libya, Côte d’Ivoire and Mali. In addition, Gabon, Guinea and Nigeria are under preliminary examinations . This list could give the impression that sub-Saharan Africa is the only region where “the most serious crimes of concern to the international community” are committed, and this has led the African Union (AU) to become very critical of the functioning of the ICC. The AU suspects the Court is politically influenced by its, mainly European, funding countries and is pushing for a review of the relationship between the ICC and African states. In the case of Sudan the head of state in office Omar Al-Bashir is amongst the indictees (Kenya’s President Uhuru Kenyatta’s case was  dropped in December 2014), whereas the AU asserts that trials against leaders in charge would put countries at risk of instability (.in October 2013, the AU summit passed a resolution demanding that no head of state be prosecuted, and in January 2016, the AU summit voted in favour of a proposal to withdraw from the ICC

Late 2016 three African state parties threatened to withdraw from the ICC, but the Gambia and South Africa later revoked their notice. Only Burundi, on 27 October 2017, became the first state to withdraw from the ICC , in protest against the investigation of its leader. Two days before, the Court had announced it would begin investigations into alleged crimes against humanity perpetrated in Burundi between 2015 and 2017.

In January 2017 the AU adopted a strategy for mass withdrawal from the ICC, but with many reservations . With the exception of Burundi, no other African State parties have taken concrete steps to do so.

On 22-23 November 2017, the ICC organised a Retreat with African States Parties in Addis Ababa, Ethiopia, to discuss ways of strengthening the Rome Statute system of justice. Similar events have been held annually since 2011.On this issue, the European Union and its Member States have a pivotal role to play, as they are both an ICC supporter and donor, and important partners of the African countries. Moreover, many partnership, association and framework agreements between the EU and third countries contain a clause mentioning support for the Rome statute and or the ICC.

We have gathered key documents and analyses to help further understanding of the issues at stake in the AU showdown with the ICC. See in particular:

International Criminal Court at 15: International justice and the crisis of multilateralism , Ionel Zamfir, EPRS, European Parliament, May 2017.

OverviewAfrican Union’s viewsViews from the ICC and the Assembly of States Parties of the Rome StatuteEU viewsThink tanks’ and academic analyses

Overview

ICC website: http://www.icc-cpi.int/

Rome Statute: PDF [English, Español, Français, عربي]

  • article 13 granting power to the UN Security Council to refer cases to the ICC;
  • article 16 granting power to the UN Security Council to defer cases for one year;
  • article 27 the jurisdiction of the ICC is applicable to any person, whatever their official  capacity (such as Head of State or member of a government); but: article 98 “The Court may not proceed with a request for surrender or assistance whichwould require the requested State to act inconsistently with its obligations under international law”
  • article 86 obligation for the States Parties to cooperate with the ICC.

The EU, Africa and the ICC – Prospects and Challenges in: Mainstreaming Support for the ICC in the EU’s Policies / Olympia Bekou; Hemi Mistry, European Parliament, DG EXPO, March 2014,  pp. 79–90.

A detailed analyses of the AU and AU members’ positions, and recommendation for the EU institutions.

International Criminal Tribunals: A Visual Overview / Daniel McLaughlin, Leitner Center for International Law and Justice, 2013. See pp 63-74 on ICC.

The African Union, Kenya and the International Criminal Court / Jon Lunn. Standard Note, SN06743, 16 October 2013, 2 p.

The background of the AU’s call for a deferral of proceedings against Kenyatta – this note was written before the UN security Council rejects the request .

The International Criminal Courts Involvement with Africa: Evaluation of a Fractious Relationship / Konstantinos D. Magliveras; Gino J. Naldi. Nordic Journal of International Law, Vol. 82, no. 3, pp. 417–446, January 2013.

African Union’s views

Decisions and declarations of the AU Assembly

In June 2015, the Assembly decided ( Decision 586 XXV ) to set up an Open-ended Ministerial Committee of Ministers of Foreign Affairs on the ICC to ensure that the decisions of the Assembly on ICC are implemented . The group met for the first time on 27 September 2015 in New York .

Some of its conclusions are summarised in the Progress Report Of The Commission On The Implementation Of The Decisions Of The Assembly Of The African Union On The International Criminal Court ( January 2016 , and subsequent editions).

In several decisions the AU Assembly expressed its concern about the abuse of universal jurisdiction , mainly by European States against African leaders (cf also AU views in the AU-EU Expert Report on the Principle of Universal Jurisdiction, 2009 : “When genocide, crimes against humanity and war crimes take place within an African state’s own territory, there is no need for that state to rely on universal jurisdiction in order to prosecute the perpetrators: trials can take place on the basis of territorial jurisdiction.”)

The AU assembly also highlighted the fact that prosecution against heads of states could be detrimental for the resolution of conflicts in their countries ; and asked the African States parties to endorse the call for a reform of the Rome Statute procedures of the ICC and for a clarification of the principle of complementarity (the role of the ICC as a last resort, when no national action is undertaken or possible).

AU member states are not unanimous and some of them have expressed their commitment to the ICC: Nigeria , Botswana , Mali , and The Gambia . Observers hope that Ciryl Ramaphosa will renew South Africa’s commitment to the ICC.

Views from the ICC and the Assembly of States Parties of the Rome Statute

Informal summary by the President on the “Relationship between Africa and the International Criminal Court , Fifteenth session of the Assembly of State Parties , 18 November 2016.

The President of the Assembly of States Parties Mr. Sidiki Kaba proposed to include a special segment to provide an opportunity to engage in a constructive dialogue on the relationship between Africa and the International Criminal Court. Some States Parties, while recognizing that withdrawal from a treaty is a sovereign decision of a State, nevertheless expressed their deep concern about the withdrawals of Burundi, The Gambia and South Africa and the message such actions could send. A number of States voiced their hope that the three States would reconsider their decision.

Special segment as requested by the African Union : “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation” Informal summary by the Moderator, Twelfth session of the Assembly of States Parties , 21 November 2013.

The International Criminal Court and Africa: A Discussion on Legitimacy, Impunity, Selectivity, Fairness and Accountability GIMPA Law Conference 2016 / Keynote address by Fatou Bensouda, Prosecutor ICC (March 2016).

ICC press releases:

13/03/2017 ASP President welcomes the revocation of South Africa’s withdrawal from the Rome Statute

14/10/2016 Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi

24/11/ 2015 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: ‘The ICC is an independent court that must be supported’

26/02/2014- President of the Assembly calls upon the Government of the Democratic Republic of the Congo to respect its obligations under the Rome Statute

11/02/2014- President of the Assembly welcomes continued commitment to the International Criminal Court from politicians from Francophone African States

02/10/2013- President Intelmann sends letter to the African Union

Coalition for the ICC (CICC)

6 facts about the African Union summit and the ICC / Global justice Blog, 4.02.2016.

EU views

Article 3(5) of the Treaty on European Union states that one of the EU’s aims is to promote to the wider world the values on which it is based: democracy, rule of law, and human rights. EU support to the ICC is in line with these principles. For the EU, the ICC is the court of last resort – when national justice institutions fail to act (principle of complementarity); additionally, support for an independent justice sector has an important place in EU cooperation programmes, especially in the framework of the Cotonou Agreement.

European Commission / EEAS

Declaration by the High Representative on behalf of the European Union on the occasion of the Day of International Criminal Justice , 17 July 2017

The EU reaffirmed their full support to the International Criminal Court and to the strengthening of an international criminal justice system committed to deter the commission of crimes, to fight impunity and to ensure the protection of the victims’ rights.

Statement on The Gambia’s decision to retract its withdrawal notification from the Rome Statute Press Release, 17 February 2017. See also Joint answer given by Vice-President Mogherini on behalf of the Commission Written questions: E-008904/16 and E-008932/16 on 22 March 2017.

Declaration by the High Representative on behalf of the European Union on South Africa and Burundi and the International Criminal Court 21 October 2016

Support for justice reform in ACP countries / European Commission EuropeAid External Cooperation Office, Luxembourg: EUR-OP, 2010, 100 p.

This reference document covers both theoretical and practical aspects about helping to implement an independent justice sector.

Joint Staff Working document on advancing the principle of complementarity: Toolkit for bridging the gap between international and national justice / European Commission; EEAS. , SWD(2013)26 final, 31 January 2013e, 30 p.

The EU’s Framework on support to transitional justice   7.08.2015

Council

COJUR-ICC is the working group of the EU Member states on the ICC.

EU’s response to non cooperation with the ICC by third states  / International Criminal Court Sub-area of the Public International Law Working Group (COJUR-ICC). Council of the European Union. 27 November 2013, 4 p.

Information note on the discussions of the COJUR-ICC Working Party sent to EU delegations.; it  reaffirms the EU’s full support to the ICC and urges delegations in third countries “to convey relevant information […] on non-cooperation” [of third countries with the ICC].

Action Plan to follow-up on the Decision on the International Criminal Court / Political and Security Committee to Coreper. Council of the European Union. 12 July 2011, 18 p.

This Action Plan aims at coordinating EU member states’ interpretation of the Rome Statute, as concerns in particular the independence of the ICC and the implementation of the principle  of complementarity.

EU’s support to transitional justice – Council conclusions 16.11.2015

More documents can be found the Coalition for the International Criminal Court website.

European Parliament

The EP regularly reaffirms its support for the ICC, most recently in Resolution of 16 November 2017 on the EU-Africa Strategy: a boost for development, or in EP resolution of 12 March 2015 on the EU’s priorities for the UNHRC sessions in 2016 .

More specific resolutions were adopted in the past:

17 November 2011 EU support for the ICC: facing challenges and overcoming difficulties

The European Parliament “[…]Calls on the African States Parties to the Rome Statute of the ICC to fulfil their obligations under the ICC Rome Statute […];
expresses support for the Court’s request to open a liaison office with the African Union in Addis Ababa […]”

19 May 2010 Review Conference on the Rome Statute of the International Criminal Court, in Kampala, Uganda

The European Parliament “[…] Highlights the importance of the choice of an African country, Uganda, to host this Review Conference, and expresses support for the Court’s request to open a liaison office to the African Union in Addis Ababa, while recognising the universal dimension of the ‘Rome Statute system’; […]”

Press statement

European Parliament delegation visit to the African Union and Ethiopia , Addis Ababa, 15-17 July 2013

Before the AU, the EP representatives called for a better cooperation in the promotion of global justice.

Think tanks’ and academic analyses

What’s Next for Africa and the International Criminal Court? P.Nantulya, Africa Center for Strategic Studies, December 2017

Calls for African countries to withdraw from the ICC overlooked the strong role Africa had in establishing the Rome Statute and the ongoing support the Court retains on the continent.

Will other African countries follow Burundi out of the ICC? Institute for Security Studies, ISS Africa, November 2017

Withdrawal from the International Criminal Court. Does Africa have an alternative? Vukile Ezrom Sibiya & Michelle Nel, ACCORD, September 2017.

The African Court with a Criminal Jurisdiction and the ICC: A Case for Overlapping Jurisdiction?. Zekarias Beshah Abebe, in: African Journal of International & Comparative Law 25, no. 3 (August 2017). p. 418–429

A court in crisis? the ICC in Africa, and beyond Valérie Arnould, Egmont Institute, May 2017.

The AU’s (other) ICC strategy Institute for Security Studies, ISS Africa, February 2017

The ICC Is Flawed. Is It Still Africa’s Best Hope for Justice? A. Green World Politics Review, 31 January 2017.

Beyond the ICC exit crisis L. Koko, Institute for Security Studies (EU ISS) December 2016.

Africa’s ICC concerns are ignored at everyone’s peril  Institute for Security Studies, ISS Africa, November 2016

The International Criminal Court, Africa and the African Union: What way forward? P. Apiko & F. Aggad, ECDPM, November 2016.

Beyond the ICC: how international criminal justice can thrive in Africa Institute for Security Studies, ISS Africa, April 2016.

International Criminal Justice in Africa: Issues, Challenges and Prospects HJ van der Merwe and G. Kemp, Konrad Adenauer Stiftung, March 2016.

New Posture and Old Rhetoric?: The Role of the African Union in International Criminal Justice , G. Musila, Africa center for Strategic studies, February 2016.

The uncertain promise of hybrid justice in the Central African Republic   Valérie Arnould, Egmont Institute, September 2015.

This policy paper highlights the challenges facing the Special Criminal Court to be set up by the Central African Republic, relating to capacity needs, ongoing insecurity, the Court’s relationship with the ICC, and its investigative focus.

Support for the International Criminal Court in Africa: Evidence from Kenya Afrobarometer Policy Paper 23, August 2015.

Africa dumps the ICC   Arnold Wehmhoerner, FEPS, June 2015.

Actors of Accountability in Africa: ICC, African Union and Nation-States Ole Frahm, IAI Working Papers 15/12, May 2015.

Hybrid courts as in Senegal that combine national and international law may be part of the solution to bridge the growing antagonism between the ICC and the AU.

The Brookings Institution (USA) has a series of analyses on the topic, among which:

African leaders and the International Criminal Court: perpetrators, victims or scapegoats? ISPI Studies, May 2014.

Marco Pedrazzi assesses the huge problems faced by the ICC setting them in the wider framework of international criminal justice’s development; Mehari Taddele Maru focuses on the dispute between the ICC and the African Union, highlighting how the solution may require a generational shift of attitude to both the actors; Leonardo Baroncelli and Chantal Meloni analyze respectively the cases of the ICC’s action in Democratic Republic of Congo and Kenya, outlining future challenges and recent achievements.

The International Criminal Court and the politics of prosecutions   Alana Tiemessen The International Journal of Human Rights Vol. 18, Iss. 4-5, 2014.

The author assesses the credibility of the ICC as an impartial and independent institution by demonstrating how state behaviour towards the Court has politicised prosecutions.

Africa’s Relationship with the International Criminal Court: More Political than Legal   Cole, Rowland J. V.  Melbourne Journal of International Law 14:2, 2014.

Democracy or Stability? European Approaches to Justice in Peace and Transitional Processes   Iavor Rangelov. in: Global Policy 5, no. 2 (May 1, 2014); p. 191–200.

International criminal justice in Africa: it’s not all about the ICC J. Kariri Njeri and T.Mayekiso, ISS Africa, February 2014.

Political Bickering over the International Criminal Court   Margit Hellwig-Bötte. SWP Stiftung Wissenschaft und Politik (Germany). SWP Comments, 2014/C 05, January 2014.

According to the author, AU criticism of the ICC is also an attempt to dissuade Western states from interfering in African-led peacekeeping efforts, and from being too patronizing about  the respect of human rights and of the rule of  law.

The ICC and its Deteriorating Relationship with Africa in Light of the Kenya Cases: What Should the EU Position be?   Mathias Holvoet; Medlir Mema. IES The Institute for European Studies. Policy Brief, 2013/09, November 2013

Africa Attacks the International Criminal Court   Kenneth Roth. The New York Review of Books , 6 February 2014.

A depiction of the individual situations of the indictees, this article also highlights the ICC’s responsibilities for the AU discontent.

Rwandan Genocide-20 Years On: Remembering the importance of collective efforts towards political accountability SAIIA South African Institute of International Affairs, 30 April 2014.

For the author, the calls for withdrawal from the Rome Statute are dangerous, because most African states  lack capacity to sue war criminals before national courts.

Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability and Reconciliation in Africa Charles Chernor Jalloh. Social Science Research Network, 10 January 2014.

The author “contends that much of the African Union’s current concerns about the Kenya situation can be addressed within the confines of existing Rome Law”.

Universalising international criminal law: The ICC, Africa and the problem of political perceptions   Max du Plessis. ISS Institute for Security Studies (South Africa). ISS Papers, 249, December 2013, 12 p.

This paper discusses the gap between the universal aspirations of the ICC and its focus on the African continent, which can lead to undermining the credibility of the Court.

The African Union and the International Criminal Court: An embattled relationship?   Tim Murithi. IJR Institute for Justice and Reconciliation (South Africa). Policy Brief, 10, March 2013, 12 p.

This article discusses the trajectory of Africa’s relationship with the ICC and offer prospects to repair it.

The ICC and its Deteriorating Relationship with Africa in Light of the Kenya Cases: What Should the EU Position be?   Mathias Holvoet and Medlir Mem, Institute for European Studies, Policy Brief 2013/09 November 2013

Africa and the International Criminal Court Max du Plessis, Tiyanjana Maluwa and Annie O’Reilly , Chatham House, International Law 2013/01 (July 2013).

Impunity for the Powerful: The African Union & the International Criminal Court Arnold Wehmhoerner, FEPS 29/10/2013

A Fractious Relationship: Africa and the International Criminal Court Perspectives 1/12, Heinrich Böll Foundation, 2012.

The International Criminal Court: A European Success Story? Mitja Mertens, College of Europe, January 2011.

Discussion

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