The lingering ICC-African Union feud

ICC headquarters, Hague. Image source wikipedia

ICC headquarters, Hague. Image source wikipedia

THE discord between the International Criminal Court (ICC) and African countries would have been comical, were it not so calamitous. How long will it last? At what costs to important international and continental affairs?

Whereas Kenyan President Uhuru Kenyatta has closed his matter in question with the ICC, Sudanese President Omar Al Bashir has engaged the ICC in a run-around trip for six years, and the costs are mounting all around. Those costs were seen in the disarray at the recent African Union summit and the host country, South Africa, is still picking up the broken pieces. President Al Bashir walked in tall to the African Union (AU) summit, but left in a not so-glorious exit from South Africa.

The second AU summit of the year was held in Johannesburg from June 13-15 and had as theme: “2015. Year of Women’s Empowerment and Development Towards Africa’s Agenda 2063”. It had many other pressing issues lined up ranging from terrorism, peace and security to socio-economic development and Ebola. In an unusual turn of events, little if any attention was paid to the impressive number of African preoccupation when the meeting ended. The fear of the ICC and its long reach dominated media and global attention. The dramatic arrival and stealthy departure of President Al Bashir stood out as the singular defining characteristic of the 25th African Union summit.

The disagreement between the ICC and AU started several years ago. Though the AU has 33 of its 54 states as signatories to the 1998 Rome Statute that established the court, African leaders had denounced the Court as being “anti-African”. The AU had asked the ICC to defer actions against sitting heads of state and government. It accused ICC of targeting African leaders for prosecution and asked member states to ignore its ruling on sitting heads of state.

The records of the Court show that only Africans had ever been indicted. The ICC is an independent judicial body that does not countenance immunity as obstacle to prosecution of grave international crimes. The court has been accepted by 122 states, mostly in Africa. Notably though, many important states have not accepted the court, including China, Russia, the United States, India, Pakistan and Indonesia.

Despite the AU position, in October 2014, President Kenyatta appeared before the ICC at The Hague to confirm that he had no role in the charges that were brought against him from the killing and atrocities in Kenya following the 2007 elections. The Court subsequently discontinued his case due to inability to get witnesses and “lack of cooperation” from the Kenyan government. President Kenyatta closed the ICC agenda.

President Al Bashir was the first, and only sitting head of state indicted by the ICC. In 2009, he was indicted for war crimes in Darfur, where 300,000 people were killed and millions of people were displaced due to brutal government intervention. He waived it aside. But the ICC did not relent and he was pursued as a fugitive, making his international travels an elaborate, hide-and-seek affair to prevent him being taken by force to the ICC.

When information surfaced that France would plan to send out fighter aircraft to force his presidential plane to a place where he could be arrested, the Sudanese government countered that his flights would be accompanied by Sudanese fighter jets. His flights take advantage of the law of the sea, making sure that he avoids airspace of countries which can intercept him, even if takes him more than twice the time.

Carefully, President Al Bashir chose “safe” places to visit… Sudan, Malawi, Chad, Kenya, Djibouti and Democratic Republic of Congo, China, Iran, Ethiopia and Nigeria, where he left the AU summit before it ended due to possible judicial action by civil society groups.

On June 13, President Al Bashir caused a stir when he arrived in South Africa for the summit. The media and civil society organisations took exceptional interest. On June 14, the South Africa Litigation Centre, a civil society organisation, obtained from a Pretoria High Court Judge Hans Fabricius a temporary order to prevent President Al-Bashir from leaving the country pending the decision of a case on whether he should be arrested. Nowhere has a sitting president or head of state been arrested in such a manner. As a signatory to the ICC, would South Africa abide by its legal obligation to arrest the Sudanese President? Who will carry out the arrest? How will it be executed?

The ICC issued a statement urging the South African government to “respect their obligations to co-operate with the Court.” The United Nations called on South Africa, and all signatories to the Rome Statute to abide by their obligations.

The SA government responded that President Al Bashir was not in the hands of the government but with the AU. The Government argued that the Sudanese President was given immunity while he was an AU delegate in South Africa.

In 2014, the AU adopted a protocol providing immunity from prosecution to any serving AU head of state and extending the jurisdiction of African Court of Justice and Human Rights to include criminal jurisdiction over genocide, crimes against humanity and war crimes. The protocol will enter into force once 15 AU members have ratified, but so far only four states have signed it, and no state has ratified it.

On June 15, while the case was being considered in court in South Africa, news came that President Al Bashir had left the country. The matter has raised legal and political issues that continue to occupy South Africa and will engage the AU in planning future summits.

In the unusual situation, South Africa was faced with contending issues – abiding by its role in the ICC and complying with its warrant of arrest; or respect its own sovereignty and determine action to take; or stick to the diplomatic immunity that covers heads of state as provided in the Vienna Convention on Diplomatic Relations.

The South African government has a court request to investigate the circumstance of President Al Bashir’s departure. One official response has been that the President’s passport was not seen nor cleared at any of the airports. The Sudanese presidential plane was at the Waterkloof air force base where official protocol did not demand that a President be cleared. The issue continues to get a lot of attention within and outside the country.

President Al Bashir, who had ruled his country for 25 years, had just got a new mandate when he won 94 per cent of the votes in an election boycotted by the opposition. He will be around for many more AU summits. And just in case he chooses to attend, the AU has to have more effective damage control measures in place. The continental body should plan to keep attention focused on serious issues and not allow predictable diversion that cedes centre stage to ICC and President Al Bashir. Especially as the dissent against the ICC and move for mass withdrawal of African states from the body is yet to gain serious momentum, and will likely not happen.

• Makinwa is a communication for leadership entrepreneur based in South Africa and Nigeria.



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