Advancing International Criminal Justice in Africa: State Responsibility, the African Union and the International Criminal Court.

Transcription

1 Advancing International Criminal Justice in Africa: State Responsibility, the African Union and the International Criminal Court Conference Report Towards an Effective Advocacy Response 14 th to 16 th November, 2011 Nairobi Kenya Organized by Centre for Citizens Participation on the African Union (CCP-AU), Trust Africa and MacArthur Foundation

2 LIST OF ABBREVIATIONS ACHPR ASP AU CAR CCPAU CIPEV CSOs CSVR DRC EU ICC ICG ICGLR ICJ-K MP NGOs NGOs ODM OTP PALU PNU PSC PTC R2P SPLM/A UNAMID African Charter on Human and Peoples Rights Assembly of State Parties African Union Central African Republic Centre for Citizens Participation on the African Union Commission of Inquiry into the Post-Election Violence Civil Society Organizations Centre for the Study of Violence and Reconciliation Democratic Republic of Congo European Union International Criminal Court International Crisis Group International Conference of the Great Lakes Region International Commission of Jurists-Kenya Member of Parliament Non-Governmental Organisations Non-Governmental Organisations Orange Democratic Movement Office of the Prosecutor Pan-African Lawyers Union Party of National Unity Peace and Security Council Pre-Trial Chamber Responsibility to Protect Sudan Peoples Liberation Movement/Army United Nations Hybrid Operation in Darfur 2

3 TABLE OF CONTENTS 1. Executive Summary 4 2. Introduction 6 3. Perspectives on the ICC Interventions in Kenya 9 4. The political and legal context to the African Union position on the 12 International Criminal Court 5. Civil Society Organisations Strategies to Advance International Justice 20 in Africa 6. Conclusion Annex I: List of Delegates 28 3

4 1. EXECUTIVE SUMMARY The support extended by African States towards the establishment of the Rome Statute and the formation of the ICC is rooted in regional antecedents, encapsulated in the Constitutive Act of the AU, the African Charter on Human and Peoples Rights (ACHPR), the African Union Protocol Relating to the Establishment of the Peace and Security Council (PSC), among other decisions that seek to combat impunity in the continent. The emergence of a new AU position towards the ICC is linked to the indictment of Sudanese President Omar El Bashir that is underpinned by political and legal arguments related to the application of instruments of international justice in African situations. At the political level, criticism of the ICC s interventions in Africa is founded on the argument that; they undermine regional efforts to secure peace and political stability, the application of instruments of international justice is selectively targeted towards African countries, and that the Court s Prosecutor is predisposed towards political machinations contrary to its mandate. At the legal level, critics of the ICC s issuance of an arrest warrant against President Omar El Bashir argue to the conflictual nature of legal provisions; in particular the provisions under international customary law that provide immunities to Heads of States and those of the Rome Statute that disregard such immunities. The AU has consequently adopted a resolution requiring its member States not to cooperate in the arrest and surrender of President Omar El Bashir. In light of the political and legal challenges that threaten to undermine the quest for international criminal justice in Africa, CSOs at the conference adopted strategies that seek to sustain the pursuit for justice, by engaging with the AU, member States, government ministries, parliaments, and sensitizing the media and other stakeholders. At the national level, participants adopted strategies around advocacy and technical assistance for domestication of the Rome Statute; technical assistance to strengthen the capacity of the judiciary, investigative and prosecutorial bodies and witness protection agencies; enhancing domestic advocacy to influence government positions in support of international criminal justice ahead of regional and international meetings; and initiation of innovative programs (such as the release of shadow reports and participation in Universal Periodic Review processes) to monitor the record of governments in achieving the objectives of international criminal justice. 4

5 At the continental level, participants agreed to; build existing capacities within the AU to address emerging legal and political challenges against the ICC, engage with the various institutions of the AU to advance objectives of international justice, and through litigation and advisories develop regional jurisprudence on international criminal justice. At the international level, participants identified strategies at two levels. First, actions targeting the ICC through participation in strategic meetings and events including the Assembly of State Parties (ASP) annual meetings; and undertaking activities to correspond to transitions within the Court, in particular developing, conveying and building awareness on regional concerns on the ICC s interventions and challenges in applying international instruments of justice among new officials including the Prosecutor. Second, participant CSOs will target the UNSC in order to; demand a clear articulation of Article 16 that deals with the criteria for deferrals, identify and work with allies within the Council to advance principled positions on international justice, and advocate for the application of other instruments of international justice besides and/or in addition to the ICC. Cross-cutting the national, regional and international level strategies, participants identified the need for enhanced networking as imperative to the realization of identified strategies and interventions. Accordingly, participants agreed to establish partnerships and networks to coordinate training and outreach activities, and in particular identified the CCP-AU as a suitable focal point for CSOs engagement with the AU. Participants further proposed the establishment of specific working groups to spearhead thematic interventions at various levels and agreed to enhance outreach to advance international criminal justice in the region through improved messaging and media liaison. 5

6 2. INTRODUCTION The function of international justice mechanisms in Africa, in particular the International Criminal Court (ICC) has been beset with serious challenges of acceptability, portending a backlash to the pursuit of human rights and justice in Africa. While the African region s support for the enactment of the Rome Statute on the International Criminal Court (hereinafter the Rome Statute) is widely acknowledged and further reflected in the decision of three African countries to self-refer 1 cases to the ICC, the issuance of arrest warrants against Sudanese President Omar El Bashir regardless of a deferral request by the African Union (AU) heralded the waning of the AU support for the ICC s interventions within the continent. This has been attributed to both political and legal factors. Political factors center on: the impact of the ICC s interventions on the stability of African countries, particularly those emerging from conflict; doubts on the power relations and interests underpinning the selective application of instruments of international justice as reflected in the United National Security Council s (UNSC) referral mandate within the Rome Statute; and perceived political machinations of the ICC Prosecutor. Legally, the complex challenge of effecting the ICC s arrest warrant against President Bashir has resulted in disparate views on the perceived conflict between practices of international customary law as regards immunity of Heads of States, and the irrelevance of such immunity within the Rome Statute. In the face of these challenges Trust Africa, The Centre for Citizens Participation on the African Union (CCP-AU) and MacArthur Foundation organized a conference under the theme Advancing International Criminal Justice in Africa: State Responsibility, the African Union and the International Criminal Court; Towards an Effective Advocacy Response which was held from November 14 th to 16 th, 2011 in Nairobi, Kenya. The overall objective of the conference was to develop strategies that encourage the AU to focus on national level accountability for international crimes, while promoting more constructive and elevated debates on the ICC within the AU. Specifically, the conference aimed to: a) Establish a common understanding about the historical relationship between the AU and the ICC; b) Given the political landscape, develop concrete, realistic and proactive strategies that aim to both increase the AU s commitment to advancing international criminal justice in Africa and to break the impasse between the AU and the ICC; 1 Uganda, Democratic Republic of Congo and Central African Republic. 6

7 c) Draw lessons from civil society efforts thus far on what advocacy interventions have worked, what has not worked, and why; and d) Identify opportunities for collaboration and independent action among CSOs and how best to coordinate them. The conference brought together over 55 delegates from 13 African countries drawn from academia, national and international Non-Governmental Organisations (NGOs) and development partners working around international justice. The meeting was conducted under the Chatham House Rule. The conference commenced with a keynote address delivered by Dr. Willy Mutunga, Chief Justice of Kenya, on 14 th November. Dr. Mutunga emphasized on the need to nurture the relationships between individual States, the AU, ICC and CSOs as four crucial platforms in the pursuit of accountability and justice for serious crimes against humanity and gross human rights violations in the continent. While highlighting the historical background that demonstrates Africa s support for the ICC and international justice in general, the Chief Justice underlined the imperative for key actors to pay close attention to: the intersection between the ICC s legal process and the politics related to the situations in which the ICC intervenes; ensuring the integrity of the Court s Office of the Prosecutor; and enhancing national technical capacities to achieve complementarity for serious crimes. In concluding, the Chief Justice encouraged Conference participants to appraise the genuine concerns emerging from the AU such as the concerns around the UNSC - and to ensure that the Conference can come up with transformative strategies to advance accountability and end the culture of impunity on the continent. Two background papers were prepared to facilitate Conference discussions Historical and Political Contexts of the African Union s Decisions on the ICC and The ICC and Africa: Potential Strategies for Civil Society. These papers were discussed in panel and plenary sessions. Additionally, several presentations were made and plenary discussions held focusing on the ICC s intervention in Kenya; the mandate of the ICC and its intervention in Africa; and the AU s record on fighting impunity and its support for the ICC. Participants further had an opportunity to discuss key themes emerging from the Conference through four breakout strategy sessions. This report synthesizes the presentations, discussions and strategy sessions to highlight the key areas of concern, civil society experiences and lessons, and strategies emanating from the Conference for advancing international criminal justice in Africa. The report is structured into three main parts. The 7

8 first part constitutes an executive summary. The second part provides highlights of the ICC s intervention in the Kenyan 2007 post-election violence situation. The third part of the report provides a context to the shifting position of the AU on the ICC and its interventions in Africa; this is set out in three steps. First, the report examines continental support towards the establishment of the ICC. It demonstrates that the AU s initial support for the Rome Statute and creation of the ICC is rooted in its antecedents that proclaim normative values of human rights, democracy, peace and security. Next, the report traces the change in AU support for the ICC to emerging political and legal challenges, whether rightly or wrongly perceived. These challenges are then examined in the final section of the second part. The third part of the report outlines the strategies that CSOs propose to pursue in order to sustain the quest for international criminal justice in Africa. 8

9 3. PERSPECTIVES ON THE ICC INTERVENTION IN KENYA Kenya has had a history of elections-related violence which can be traced back to the advent of multi-party politics in the 90s. However, the 2007 violence was unprecedented and distinctive from past episodes of violence in several ways: it occurred after the elections and in dispute of the presidential election outcome which pitted President Kibaki s Party of National Unity (PNU) against Prime Minister Odinga s Orange Democratic Movement (ODM); was massive resulting in 1,133 deaths, more than 900 documented cases of rape and other forms of sexual violence, 3,561 reported acts causing serious injury, displacement of over 663,921 people, and 78,254 houses destroyed countrywide among other wanton destruction of public and private property worth millions of shillings 2 ; and widespread with virtually all regions of the country having been affected. The 2007 violence was also distinct in its attraction of international interest occasioned by the influx of refugees fleeing from Kenya to neighbouring countries and calls by the opposition for international involvement to mediate the political crisis. Moreover, CSOs discourse on the violence directed to the possibility of the occurrence of genocide and crimes against humanity which demonstrated that the international community may have a role to play in addressing such crimes. The AU intervened to broker peace through the creation of a three-member Panel of Eminent African Personalities led by Chief Mediator Kofi Annan to steer the Kenya National Dialogue and Reconciliation (KNDR) process. 3 The dialogue resulted in an agreement between President Kibaki and Prime Minister Raila Odinga leading to the establishment of the Grand Coalition Government on February 28, This paved way for agreement on the General Principles and Parameters for the establishment of various transitional mechanisms including a Commission of Inquiry into the Post- Elections Violence (CIPEV). CIPEV was mandated to investigate the facts and circumstances surrounding the 2007 post-election violence, the conduct of State security in handling the violence, and to make recommendations on these matters. The CIPEV found that while the violence was a spontaneous reaction to the perceived 2 Republic of Kenya, Final Report of the Commission of Inquiry into the Post Elections Violence (CIPEV), October 16, 2008, p ; and the Ministry of State for Special Programmes Internal Displaced Persons Status Brief as at July 30, 2010 sourced from the United Nations Office for Coordination of Humanitarian Affairs at 3 KNDR was led by a three-member Panel of Eminent African Personalities: Hon. Koffi Anan as the Chairperson, and Benjamin Mkapa, President of Tanzania and Graca Machel former Minister and First lady of Mozambique as members. KNDR was formally launched on January 29, Members of the PNU and ODM parties constituted the negotiating team. 4 Agreement on the Principles of Partnership of the Coalition Government February 28,

10 rigging of elections in various parts of the country, there were systematic attacks against civilians in other areas based on their ethnicity and political leaning; these attacks were planned and organised by business leaders and politicians who solicited the assistance of armed militias. The State security agencies were also implicated in the Commission s findings for their failure to anticipate, prepare for and contain the violence, as well as their involvement in the commission of acts of violence and gross human rights violations. The CIPEV recommended the establishment of a Special Tribunal that would investigate and prosecute persons bearing greatest responsibility for serious crimes, particularly crimes against humanity committed during the post-election violence. If the government failed to establish the Tribunal it was to refer the matter to the ICC Prosecutor to consider opening investigations into the Kenyan situation. Following the government s failed attempts to pass the requisite legislation and lack of political will to establish the Tribunal, the ICC prosecutor sought for authorisation to institute investigations into the Kenyan situation on his own motion in November This triggered the ICC s intervention in Kenya, resulting in two cases against six suspects 5 ; on 23 rd January, 2012 the ICC confirmed charges against four 6 out of the six suspects now expected to proceed to trial, pending appeal. While the government of Kenya has repeatedly expressed its willingness to cooperate with the Court in adherence to its obligations within the Rome Statute, the Court continues to face strong political opposition. Notably, upon the Prosecutor making an application for the Court to issue summons against the six suspects, Parliament passed a motion urging the government to take steps to withdraw from the Rome Statute 7 ; the government launched a shuttle diplomacy mission to lobby African states to support a resolution for Kenya to petition the UNSC for a deferral of the cases before the ICC; the AU subsequently supported a Resolution for deferral of the Kenyan cases before the Court; the Kenyan government eventually filed an admissibility challenge before the ICC; and the President issued a statement in support of the Head of Public Service during his confirmation of charges hearings, choosing to take the side of an individual in total disregard for victims and the country. At 5 The Prosecutor vs. William Ruto a former Minister, ODM Member of Parliament (MP) and Presidential aspirant, Henry Kosgey a former Minister and ODM MP, and Joshua sang a journalist in the first case; and Ambassador Francis Muthaura the current Head of Public Service, Uhuru Kenyatta the current Deputy Prime Minister and Ali Hussein, the former Police Commissioner in the second case. 6 Ibid; the ICC confirmed charges of various crimes of humanity against William Ruto and Joshua Sang in the first case, and Ambassador Francis Muthaura and Uhuru Kenyatta in the second case. 7 While Parliament was passing a motion to withdraw from the Rome Statute polls demonstrated that 78%, the vast majority of Kenyans, was happy with the ICC s intervention; see South Consulting, Kenya National Dialogue and Reconciliation Project Draft Review Report, April 2011 ( accessed on 15 th February, 2012). 10

11 the same time, the government invited President Omar El Bashir to Kenya s Constitution promulgation ceremony notwithstanding the warrant of arrest against him and failed to arrest him, blatantly violating the Rome Statute obligations. Moreover, as the political opposition to the Court persists, there have been no genuine corresponding efforts to initiate domestic proceedings against perpetrators of the post-elections violence. The foregoing actions demonstrate lack of sufficient political will to pursue accountability for crimes against humanity committed during the post-election violence. Further, they point to the possibility of non-cooperation should the cases proceed to trial. In this regards, it is notable that two among the six suspects have declared their interest to vie for the presidency in the next election, and questions abound on whether they would be eligible to stand for public office with charges of crimes against humanity. If they were to vie and succeed, the court might be faced with the legal and political challenges currently at play in the Sudan situation and attendant to prosecuting a sitting Head of State. Nonetheless, the ICC s intervention thus far has demonstrated that there will be consequences for courting violence and perpetrating international crimes and should deter would-be perpetrators in its next general elections scheduled for

12 4. THE POLITICAL AND LEGAL CONTEXT TO THE AFRICAN UNION POSITION ON THE INTERNATIONAL CRIMINAL COURT The two background papers provided a comprehensive and incisive background to the AU s relationship with the Court. The paper on Historical and Political Contexts of the African Union s Decisions on the ICC traced the genesis of political challenges to the ICC to the uneven landscape of international criminal justice rooted in the AU s opposition to perceived abuse of the principle of universal jurisdiction by European States which sought to prosecute individuals alleged to have been involved in the Rwandan genocide. The paper further identifies legal concerns that have informed some of the positions taken by the AU, particularly in relation to immunity of Heads of State from criminal proceedings resulting in Resolutions for non-cooperation with the ICC in the arrest and surrender of Presidents Bashir and later Gaddaffi. The paper concludes by underscoring the imperative for effective implementation of the Complementarity principle through domestic accountability efforts as the way forward in advancing criminal justice in Africa. The second paper - The ICC and Africa: Potential Strategies for Civil Society while also highlighting the AU s legal and political concerns on the ICC s interventions in the Continent, further outlined its efforts to curb impunity including at normative and institution-building levels, and provided recommendations on strategies that CSOs could pursue to advance international criminal justice in the region. In discussing the background papers, discussants emphasized the need for CSOs to contextualize the African situation in analyzing the AU s backlash against the ICC. It is for instance recognized that inspite of the progressive regional normative framework for fighting impunity, the AU is yet unable to limit or stop the atrocities that occur within the Continent which draw the attention of international mechanisms such as the ICC. This section of the report synthesizes the key points emerging from the background papers, discussants comments and plenary discussions on the political and legal background to the AU s position on the ICC. Africa s support for the Establishment of International Criminal Court Africa s support for the ICC established by the Rome Statute of the International Criminal Court locates in the wider context of the fight against impunity 8 ; which has been central to continent-wide 8 The 2005 United Nations Amended Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity defines impunity as the impossibility, de jure or de facto, of bringing the perpetrators of violations to account whether in criminal, civil, administrative or disciplinary proceedings since they are not subject to any 12

13 discourses on human rights, democracy, peace and security. For example, the Constitutive Act of the African Union (hereinafter the Act) adopted in 2000 outlines the promotion and protection of human rights as one of the key objectives 9 of the AU. This objective thus legitimizes the regional body s right to intervene in member states in grave circumstances that include; war crimes, genocide, and crimes against humanity 10. The Act also underscores respect for the sanctity of human life, and the condemnation and rejection of impunity among the AU s functions. 11 In addition, several legal instruments, policies and pronouncements of the AU demonstrate the regional body s commitment to fighting impunity and advancing human rights. These include; the African Charter on Human and Peoples Rights (ACHPR) of 1981 and its Protocols, the African Union Protocol Relating to the PSC adopted in , and the numerous decisions of the AU Assembly and Executive Council on specific conflict situations in Africa. Similar to the AU, other regional bodies have also initiated efforts to combat impunity, such as the International Conference of the Great Lakes Region 13 (ICGLR) Protocol for the Prevention of the Crime of Genocide, War Crimes, Crimes against Humanity and all forms of Discrimination. The preceding section thus demonstrates the existence of continent-wide antecedents to the fight against impunity, embodied in the Rome Statute that came into force in July This arguably explains the robust support extended by African States to the process leading to the enactment of the Rome Statute, and the corresponding establishment of the ICC. Accordingly, African States actively participated in the negotiations leading to the adoption of the Rome Statute; these States constitute the largest bloc of State Parties to the Rome Statute with a total of out of the 54 AU members inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. 9 AU Constitutive Act, Article 3(g). 10 Ibid., Article 4(h). 11 Ibid., Article 4(o). 12 The Protocol establishes the Peace and Security Council as a standing organ of the AU mandated to prevent, manage and resolve conflict in the region. The Council is guided by the principles outlined in the Constitutive Act including the protection of human rights and respect for the sanctity of human life as part of efforts for preventing conflict, and the right of the Union to intervene in member States in circumstances related to serious crimes including war crimes, genocide and crimes against humanity [See Article 1, 3(f) and 4(c) and (j) of the Protocol]. The Panel of the Wise is established within the PSC with a mandated to support the Council in promoting peace and security; the Panel recently conducted a study on Non-Impunity, Justice and National Reconciliation which has informed the ongoing development of a Transitional Justice Policy Framework for the AU. 13 ICGLR is a regional mechanism for peace, security, stability and development among the 11 core countries of the Great Lakes region of Africa including Angola, Burundi, Central African republic, Democratic Republic of Congo, Republic of Congo, Kenya, Rwanda, Tanzania, Uganda, Sudan and Zambia; and 7 co-opted countries including Botswana, Ethiopia, Egypt, Malawi, Mozambique, Namibia and Zimbabwe; for more information see 14 These include Benin, Botswana, Burkina Faso, Burundi, Cape Verde, Central African Republic, Chad, Comoros, Congo, Democratic Republic of Congo, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, Tunisia, Uganda, United Republic of Tanzania and Zambia; see the status of ratifications from the African region to the Rome Statute at (sourced on November 28, 2011). 13

14 having ratified the Statute, and currently constituting 27.5% of the State Parties to the Rome Statute. Following the coming into operation of the Rome Statute, the AU Commission s first Strategic Plan ( ) advocated for the universal ratification of the Rome Statute, as a strategy for strengthening the fight against impunity in the region. Further, it was the self-referrals from the governments of Uganda, Democratic Republic of Congo (DRC) and the Central African Republic (CAR) that inaugurated the ICC s operations. These demonstrate the active involvement and support of the AU member states in the establishment of the Rome Statute and the ICC, a position that has changed in recent times. The emergence of a new African Union position on the International Criminal Court The emergence of a new AU position on the ICC is traceable to the ICC Prosecutor s application for a warrant of arrest against Sudanese President Omar Al Bashir on allegations of genocide, crimes against humanity, and war crimes in Darfur, submitted before the Pre-Trial Chamber (PTC) on 14 th July Indeed, it must be noted that prior ICC interventions in the continent including the three self-referrals from Uganda, DRC and CAR; and cases against several Sudanese government officials, and the militia 16 pursuant to the UNSC referral 17 of the Darfur situation to the ICC prosecutor did not elicit any publicly acknowledged concerns from the AU. In contrast, the indictment of President Bashir triggered a set of consecutive decisions by the AU, expressing deep concern over the practical consequences of indicting a sitting President, and particularly in view of the extant efforts to support the ongoing Sudan peace process. The decision by the PTC to issue an arrest warrant on 4 th March 2009 the first ever ICC decision against a sitting President exacerbated these and other emerging concerns, culminating in the current position by the AU requiring their members not to cooperate with the ICC in arresting and surrendering the Sudanese President. The AU position demonstrates the existence of both political and legal concerns with respect to the interventions of ICC in Africa. The persistence of these concerns, despite the AU s attempts to resolve them through the UNSC, has resulted in wavering support for the ICC, a situation that has potential negative ramifications both to the ICC s operations and the quest for justice for victims. The next section of this report outlines these concerns in greater detail are from Asia-Pacific States, 18 are from Eastern-European States, 26 are from Latin American and Carribean States; and 25 are from Western European and other States; see the list of State Parties to the Rome Statute at (sourced on November 28, 2011). 16 Warrants of arrest were issued against Ahmad Muhammad Harun, the alleged leader of the Janjaweed militia and Ali Muhammad Ali abd-al-rahman, former minister of State for Interior and minister for Humanitarian Affairs in Sudan in April 2007; summons for the appearance of Bahar Idriss Abu Garda, chairman and general coordinator of military operations of the United Resistance Front in May 2009; and in August 2009 summonses for the appearance of Abdallah Banda Abubakaer Nourain, commander in chief of the Justice and Equality Movement (JEM) and Saleh Mohammed Jerbo Jamus, former Chief of Staff of SLA-Unity and integrated into JEM who are currently on trial. 17 UNSC, Resolution

15 Concerns over the Selective Application of International Justice Instruments in Africa Extant AU concerns about the application of international criminal justice instruments in Africa posit both political and legal challenges. At the political level there are three key concerns. First, there exist strong arguments that call for a consideration of the impact of international criminal justice interventions on the pursuit of peace, reconciliation and healing in Africa. Second, there is a suggestion that Africa is the unfair object of targeting by more powerful members of the international state system. In this view, powerful states utilize international justice instruments to pursue their interests at the expense of weaker states. Lastly, the conduct and mandate of the ICC Office of the Prosecutor (OTP) has also come under scrutiny. The view holds that the OTP, particularly in consideration of public pronouncements, has sought to politicize African situations before the ICC. At the legal level, Africa member states point that the execution of ICC obligations in respect of indicting sitting Presidents presents a clash of legal obligations that they continue to grapple with. The following analysis fleshes out the arguments underpinning these concerns and sets the stage for the next part of the report that examines strategies which CSOs in Africa can use to continue the pursuit of international justice, the challenges notwithstanding. The Peace and Justice Debate The AU s strongest condemnation of the ICC s warrants of arrest against President Bashir was premised on its conviction that the decision would significantly undermine ongoing processes aimed at ending the conflict in Darfur and promoting long-lasting peace, reconciliation and healing in Sudan. 18 The regional body, through its PSC noted that at the time of the prosecutor s application for President Bashir s warrant of arrest; sustained efforts were being made by the AU and the United Nations to accelerate the deployment of the African Union/United Nations Hybrid Operation in Darfur (UNAMID) and ensure the resumption of the political talks, including the appointment of a Joint AU/UN Chief Mediator, Mr. Djibril Yipènè Bassolé, progress was beginning to be achieved in the implementation of the Comprehensive Peace Agreement (CPA) signed by the Government of the Sudan and the Sudan People s Liberation Movement/Army (SPLM/A), including the Road 18 See AU PSC, communiqué of the 142 nd meeting of the Peace and Security Council, Paras. 3, 4, 8, 9 and 11(i) and (ii); AU PSC, communiqué of the 175 th meeting of the Peace and Security Council, Paras. 2, 3 and 4; and AU Assembly, Decision on the application by the ICC Prosecutor for the Indictment of the President of Sudan, Assembly/AU/Dec.221XII) Paras. 2 and 3. 15

16 Map for Return of IDPs and Implementation of Abyei Protocol of 8 June 2008 and the passing and enacting of the Electoral Law 2008; 19 The AU has repeatedly emphasized the need to ensure that justice processes do not impede the prospects for long-lasting peace, reconciliation and healing. In other words, these separate objectives ought to be addressed in a mutually reinforcing manner. Consequently, the AU in accordance with Article 16 of the Rome Statute through the PSC requested the UNSC for a one year deferral of the ICC. The deferral was contemplated to mitigate a reversion in the ongoing peace processes. The AU further agreed to establish the independent High-Level Panel of African leaders, to examine the Darfur situation, and to provide recommendations on measure to address issues of accountability, reconciliation and healing in Sudan. 20 The AU argues that such a Panel would congruent to objectives of UNSC Resolution 1593, referring the Darfur situation to the ICC, which among other calls for the creation of institutions in Sudan to promote healing and reconciliation. The Selective Targeting of Africa by the United Nations Security Council Several criticisms have been leveled against ICC interventions in Africa. For example, one line of criticism argues that Africa is the unfair target of ICC interventions in Africa, a view associated with the fact that all extant situations and cases before the ICC involve African countries. Discussions in the conference however recognized that this argument is significantly weakened by evidence pointing that three out of these situations were self-referrals, two situations Libya and Sudan were referred by the UNSC, while only two situations Kenya and Cote D Ivoire were initiated through the Prosecutor s own motion. While these situations may demonstrate the prevalence of international crimes in the region, the argument suggests that the ICC should also intervene in other continents to address the prevailing perception of selective justice targeting Africa. 21 A second dominant view, held by the AU, suggests the selective application of international justice tools such as the ICC, the Doctrine of Universal Jurisdiction and the Responsibility to Protect (R2P) to achieve the interests of the most powerful states at the expense of weaker states in the international system. This view predates the ICC indictment against President Bashir, demonstrated 19 Ibid., Para The High-Level Panel was established and led by the former President of South Africa, Thabo Mbeki and submitted its final report to the PSC in October The Office of the Prosecutor is currently conducting preliminary examinations in a number of situations outside Africa including Afghanistan, Georgia, Colombia, Palestine, Honduras and Korea; (accessed on November 22, 2011). 16

17 in the uneasy manner in which the AU viewed the application of the principle of universal jurisdiction by European Union (EU) member States in the Rwandan genocide cases. The AU contends that the principle was misused as a political tool to target African leaders, a violation of the sovereignty and territorial integrity of African States. 22 Moreover, there are suggestions that the application of these tools have not been extended to regions outside of Africa; and which in this view would warrant UNSC s interventions and referrals to the ICC. In any case, the refusal by the UNSC to consider the AU s request for deferral of ICC proceedings in the Sudan situation since submission in 2008 fortify the AU s perception of an uneven international political landscape, in which African region s interests are continually marginalized. This has resulted in a number of decisions aimed at asserting the African region s opposition to what it perceives as attempts by stronger States to exercise their power over weaker African States, ostensibly to find ways in which Africa s interests can be protected within the international state system. The most significant of these efforts is the AU Assembly s decision prohibiting its member States from cooperating in the arrest and surrender of President Omar El Bashir to the ICC. The decision was spurred by the failure of the UNSC to consider the deferral request, and was made pursuant to Article 98 of the Rome Statute relating to immunities. 23 The AU reiterated this position in its subsequent decisions in support for a deferral request in the Kenyan situation, and the requested for deferral in the Libyan situation before the ICC. In addition, the AU made a decision to support a proposal for the amendment of Article 16 of the Rome Statute to allow the UN General Assembly to defer cases for one year where the UNSC fails to do so within a specified period. 24 As stand-off unfolded, the AU rejected request by the ICC to deploy a liaison officer to the AU. The AU has also sought to explore avenues with which it can pursue justice for international crimes through its own mechanisms. Notably, the AU has sought to examine the implications of the extending the jurisdiction of the African Court for Human and Peoples Rights (ACHPR) to try international crimes such as genocide, crimes against humanity and war crimes. 22 AU Assembly, Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Paras. 5 & 8; and AU Assembly, Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, Paras. 4 & AU Assembly, 13 th Ordinary Session. Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, July 3, 2009 (Assembly/AU/Dec.245 (XIII) Rev.1), paras. 9 & Ibid., para. 8; and AU Assembly, 15 th Ordinary Session, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court, July 27, 2010 (Assembly/AU/Dec.296XV), para. 7. The amendment was tabled at the 9 th Assembly of States Parties (ASP) meeting in 2010 but eventually referred to a Working Group on Amendments that will undertake informal consultations before the 10 th Assembly of States Parties which will be held in December

18 The Role and Mandate of the Office of the Prosecutor The AU and its member States have also expressed concern over the conduct of the ICC Prosecutor, particularly with regard to the public comments made on the Sudan situation, and in the issuance of warrants of arrest against the Libyan President Muammar Gadhafi, in disregard of then prevailing efforts for peace and a political solution to the crisis 25. The AU accuses the Prosecutor of making statements that politicize the ICC proceedings, and of displaying arrogance when dealing with State officials. Yet others contend that the prosecutorial strategy focuses on one side of conflict situations to enable quick wins, in the process maintaining a studious saline on other categories of crimes, victims and perpetrators. Worse still, the abrasive and outspoken nature of the Prosecutor, coupled with poor outreach by the ICC, has led to a perception that the Prosecutor is the ICC. The response of the AU is best illustrated in the decision to withhold cooperation with the ICC in the arrest of Sudanese President Omar El Bashir. Further, the AU has required the involvement of the African State Parties to the Rome Statute in the development of guidelines and a code of conduct for the exercise of discretionary powers by the Prosecutor, particularly relating to Article 15 of the Rome Statute. 26 The Conflict between Legal Obligations The conflict between legal obligations manifests in the dilemma portended by the ICC requirement for the arrest of a sitting President in disregard of immunities and privileges enjoyed under international customary law. The AU insists that obligations arising out of the latter provisions on immunities, and the AU Assembly decisions requiring non-cooperation would not permit its member States to arrest and surrender President Omar El Bashir. Moreover, Articles 98 of the Rome Statute seems to undermine the operationalization of Article 27, by requiring the ICC not to proceed with a request for surrender or assistance that would require the requested State to act inconsistently with its obligations under international law, in so far as State or Diplomatic immunity of a person or property of a third State is concerned, without the ICC obtaining cooperation of the third state in waiving the immunity. In other words, the provision seems to require the express approval of a third State in waiving immunity, a proposition the third State may find repugnant in the first instance. The salient question is therefore on the obligations of other States in effecting the arrest warrant, absent a waiver of immunity by the third Party, in this instance Sudan. 27 Accordingly, the AU has 25 The Libyan President was subsequently deposed by Transitional National Council (NTC) fighters and later arrested and killed in circumstance that remain controversial 26 Ibid., para; supra, note 21, para Article 98 of the Rome Statute provides that the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law or agreements 18

19 for instance defended the Republic of Kenya, Chad and Djibouti s all State Parties to the Rome Statute invitation to President Bashir to their countries as being in accordance with the AU Assembly decision and the requirement for compliance under Article 23 of the Constitutive Act, Article 98 of the Rome Statute and in furtherance of peace and stability in their respective regions. 28 The AU has further raised concerns over the application of the Rome Statutes provisions on immunities on officials of States that are not parties to the Statute. 29 On the balance, the lack of an effective legal mechanism to enforce the decisions of the ICC remains an ongoing challenge to the implementation of the same. Enforcement in a sense remains subject to the goodwill of member States, a situation that is reinforced by the fact that the Rome Statute similar to most international regimes does not operate independent of its member States. Put differently, some argue that it is the responsibility of member States to give life and effect to the Rome Statute, by upholding and implementing decisions of the ICC. This argument thus refers to Article 27 of the Rome Statute which disavows the applicability of immunities at any level to limit the jurisdiction of the ICC. In other words, the Rome Statute implies that official capacity is no excuse for committing crimes within the jurisdiction of the ICC, and does not exempt responsibility for the same. including with respect to diplomatic immunity, unless the Court obtains the cooperation of the requested State to waiver the immunity or of the sending State to give consent for the surrender of its citizen. See also Max Du Plessis and Christopher Gevers, Balancing Competing Obligations: The Rome Statute and AU Decisions (Institute for Security Studies Paper 225, October 2011) which discusses the conflict between the AU s recognition of international customary law granting sitting Heads of States immunity from legal proceedings and the ICC s explicit non-recognition of such immunities in Article 27 of the vis-à-vis the contradiction in Article 98 of the Rome Statute. 28 AU Assembly, 17 th Ordinary Session. Decision on the Implementation of the Assembly Decisions on the International Criminal Court, January 2011 (Aseembly/AU/Dec. 366(XVII), Para AU Assembly, 13 th Ordinary Session. Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, July 3, 2009 (Assembly/AU/Dec. 245(XIII) Rev.1), para. 8 (iv) and (v). 19

20 5. CIVIL SOCIETY ORGANIZATIONS STRATEGIES TO ADVANCE INTERNATIONAL JUSTICE IN AFRICA The second panel session of the Conference was focused on identifying potential strategies for CSOs to advance international criminal justice in Africa. Building on the strategies identified in the background papers, discussants provided further proposals which were discussed in a plenary session. In addition, participants had an opportunity to engage in further discussions on emerging proposals and identify additional strategies in four breakout strategy groups. Specifically, participants in the strategy groups were required to identify and discuss: a) The drivers of the political impasse between the AU and the ICC b) CSO efforts to address the impasse between the AU and the ICC and to advance the AU s commitment to international criminal justice, and lessons that can be drawn from these efforts c) The manner in which CSOs are engaging within AU member States to ensure realization of the complementarity principle in the Rome Statute d) The most important actions and strategies that CSOs should implement at the local and regional levels to improve the AU and African governments commitments to international criminal justice, and to help break the impasse between the AU and ICC e) Strategies for better collaboration through cross-continental and independent efforts to promote a better ICC-AU situation f) Strategies to leverage the transition of the Prosecutor, judges and vice-presidents of the Court to create short term opportunities to improving the relationship between the AU and ICC g) The manner in which the African Court of Human and Peoples Rights potential jurisdiction over international crimes can be used to meaningfully increase the AU s commitment to international criminal justice Participants found that CSOs in the region have been at the forefront in advocating for international criminal justice within their various national, regional and international spaces. Within the continent, CSOs efforts to date include lobbying AU member States ministries and parliaments to; adopt principled positions on international justice, uphold their obligations within the Rome Statute, and to ratify and domesticate the Rome Statute. CSOs have also been involved in sensitizing the media and seeking their buy-in for ongoing international justice processes. They have also engaged various 20

21 organs of the AU to infuse transitional justice approaches in addressing peace and security in the region. In spite of significant achievements, there have been some concerns related to the strategies adopted by CSOs in their engagement on international criminal justice in the continent. Most notable is their perceived failure to objectively examine the AU concerns, and to draw clear distinctions between issues that are directly attributable to the ICC as an institution on the one hand, and those that relate to other players within the international justice sphere, particularly the UNSC, on the other hand. CSOs are thus considered unable to effectively delineate strategies to address the varied issues emanating from the AU decisions, and emerging backlash against the ICC. CSOs have also been accused of failing to fully exploit opportunities available nationally, regionally and internationally to advance international justice. Participants thus robustly debated and identified several strategies to respond to identified legal and political challenges, and to advance international criminal justice at national, sub-regional, regional, and international levels, targeted at various bodies and carried out by various actors. These strategies are summarized below and in a matrix depicted at the end of this part of the report. A number of cross-cutting themes are also discussed below. Strategic considerations a) Complementarity: One of the underlying principles of the ICC, like many international justice processes, is that States have the primary responsibility to investigate and prosecute crimes that occur within their territories. The ICC will only intervene in situations where a State is unwilling or unable to investigate and prosecute genocide, crimes against humanity and war crimes. 30 Indeed, the significant progress made in norm-setting and institution-building to advance human rights, democracy and the rule of law in the region, demonstrates genuine support for and commitment to ending impunity. But there remains a gaping disconnect between these norms and the practice. While these concerns prevail, the AU and its member States also stand accused of their failure to pursue and conclude criminal justice options in a timely and effective manner; this has left victims with no options nationally and regionally but to look for justice outside their borders. Thus, the Union s decisions, to a great extent, seem to be motivated by the desire to protect their own. There was consensus among participants that the arena for action must move from the ICC and the AU, to the national arena where technical capacities are enhanced 30 See the 6 th citation of the Preamble and Article 17 of the Rome Statute. 21