The AU and ICC as Institutions
Since 2009, relations between the African Union (AU) and the International Criminal Court (ICC) have badly soured. The causes of this deterioration in relations are complex and involve a wide range of actors, relationships, and interests. This degradation of relations has serious implications for global governance.
The AU and ICC differ in institutional features and functions, but the two converge on many ideological issues. The AU is an intergovernmental organization formed from the Organization of African Union (OAU) in 1963. The OAU was created to strengthen integration among member states and to augment their influence globally (African Union 2010). The AU was established in 2002 as a replacement for the OAU. It is a political and regional organization, and its main priority is to seek the welfare and well-being of its 54 states and maintain good relations with other intergovernmental organizations. The AU by its nature is more inclined to using the tools of politics and diplomacy to solve issues arising on the African continent. It is cautious in dealing with human rights violations and places more emphasis on political reconciliation and the maintenance of regional peace.
Then there is the ICC – a treaty-based, international, permanent and independent institution, formed under the Rome Statute in 2002. It is tasked with prosecuting individuals who orchestrate and execute the most heinous international crimes against humanity. The ICC is an international court, and has a specific judicial mandate to prevent serious international crimes and impunity (International Criminal Court 2002). It is a complementary court and does not interfere in the sovereignty of states in addressing their own human rights violations. According to the Rome statute, the court should only intervene where states clearly fail to address specific crimes of genocide, crimes against humanity, crimes of aggression, and war crimes that are of grave concern to the international community.
The ICC has clear guidelines and procedures under international law that cannot be put under the veil of diplomacy and politics. The ICC operates strictly within the legal framework created by the Rome Statute and cannot take political considerations into account during investigations. Official declarations, activities, and ramifications of the ICC are unbiased and open to international scrutiny, because of the voluntary contributions it receives from different governments and global institutions. Decisions are made based on international law and evidence, which are devoid of any regional influences. The ICC must react immediately to any international act of impunity of a serious crime against humanity and consciously demand international accountability for past human rights violations and atrocities.
Institutional Approaches to Addressing Human Rights
Despite the stark institutional differences between the two organizations in their approach to addressing human rights violations and demanding accountability, they converge in that both institutions have clear responsibilities to protect, preserve and promote human dignity and international justice.
The differences between the two institutions on their approach to human rights became apparent when the ICC issued a warrant on March 4, 2009 for the arrest of President Al Bashir, whose country – Sudan, is a signatory to the ICC statute. The arrest followed a UN Security Council referral to the Court. The charges were for war crimes, crimes against humanity, and genocide (International Criminal Court 2009). The AU issued a communiqué immediately to protest the arrest warrant on the basis that it would interfere with the ongoing AU peace efforts in Sudan. In the communiqué, the AU implored the UN Security Council to direct the ICC to postpone the arrest by exercising its powers of deferral under Article 16 of the Rome Statute. The request was ignored by the Security Council, which caused the AU to formally declare non-cooperation with the ICC at its 13th Annual Summit of the Assembly of Heads of State and Government in July 2009. The AU subsequently supported the election of Al Bashir in 2010 and went on to reiterate its formal non-cooperation at the 18th Ordinary Session of the Assembly of Heads of State and Government on January 30, 2012.
Adding a further layer of difficulty, another formal charge was laid against President Uhuru Kenyatta and his deputy William Ruto that same month, on five counts of crimes against humanity that arose during the Kenya 2007-2008 post-election violence. In May 2013, the AU accused the ICC of targeting Africans on the bases of race; called for the termination of criminal proceedings against President Uhuru and his Deputy; and agreed that no sitting head of state should be arraigned before any court. The AU continued to argue that ICC interventions were selective and most of the individuals whose arrest warrants have been issued were key parties of ongoing peace processes in the region, which could affect peace-building regional endeavors.
The Presidency of the ICC has formally responded to all allegations by the AU. In a press statement published in May 2013, it acknowledged the AU’s important role as Africa’s main regional organization. Furthermore, it emphasized its independent judicial role in the international system and declared its commitment to maintaining good working relationships with all international institutions, including the AU. It denied the allegations and emphasized that the majority of the court’s interventions were initiated following requests from African states themselves. In reaction to the calls for deferral of cases through the UN Security Council, the ICC maintained that once the Security Council refers cases to it, investigations and proceedings automatically reside under the Rules of Procedure and Guidance of the Rome Statute and cannot be influenced by any external body such as the Security Council or the AU (International Criminal Court 2013).
On October 12, 2013, the AU held an extraordinary summit to consider the withdrawal of some or all African states from the ICC. The negotiations at the summit were heated and even involved external negotiations by the UN Secretary General. In the end, the proposal for a mass withdrawal of the AU from the Court was replaced with the issuance of five demands to the ICC and the UN Security Council. The demands included: an initiative for deferral to the Security Council; amendments to article 27 (which allows the ICC to prosecute sitting Heads of State), article 63 (which requires the accused be present during trial), and article 98 of the Rome Statute (which charges third-party states to assist in delivering accused persons for prosecution even if the assistance interferes with diplomatic relations or obligations under international law). They also demanded the adjournment of President Kenyatta’s appearance at the ICC court on November 12th; the cessation of appearances by Deputy-President William Ruto before the Court; and the termination of all cases against the President and his deputy. The Assembly also agreed to establish a five-member committee to conduct diplomatic negotiations with the UN Security Council on the deferral issue.
The Importance of Multilateral Relations
The Improvement of multilateral relations between the institutions is important for the sustenance of the global peace and security that the world currently enjoys. A decrease in co-operation could have negative implications for institutions, international order, and the movement for global international human rights.
There are many regional implications for the AU if its relations with the ICC continue to deteriorate. The severing of relations could signal serious questions about Africa’s commitment to protecting human rights globally. The uncooperative posture by the AU could indicate an attempt to contravene article 4 of its constitutive act, which clearly supports the fight against impunity. The detachment of the AU from the ICC could affect its diplomatic relationships with all UN agencies, the European Union and G20 countries, which are all strong supporters of the ICC’s human rights functions. The rift could tarnish the image of the many Africans who hold high-level positions at the ICC, and who serve as justices of the court. All these occurrences could negatively affect the AU’s attempt to be an influential actor in global affairs and governance.
It will not be in the interests of either organization if the corrosion of relations with the AU lingers. Tensions between the institutions could undermine the ICC’s role as the only permanent criminal court with the authority to intervene when a state is unwilling to prosecute human rights violations of international concern. There would be no international judicial and independent actor to hold African leaders and persons accountable for regional attacks on human rights with impunity. The failure by regional judicial institutions to prosecute human rights violations could go unchecked if the ICC loses its mandate on the continent. The conscription of child soldiers, mass killings, and inhumane violations of human rights that have openly occurred in the region could go unpunished if the court ceases to have influence on the continent.
Towards Better AU-ICC Relations
The AU and ICC clearly have different mandates with respect to their roles as institutions and converge on one principle: to uphold human rights and international justice. The poor relations between both institutions are not helpful for global governance, which both institutions seek to enhance. It will not improve the likelihood of attaining the goals and objectives of either institution in any way. The way forward will be to enhance relationships between the two institutions through diplomatic and reconciliatory efforts from both sides. The call for co-operation by the President of the ICC and 130 African civil society organizations in October 2013 is a commendable move towards the positive relations that both institutions need.
The ICC will need to continue to actively engage the AU on various levels. The ICC must consciously increase diplomatic and multilateral relations with the AU, and create collaborations that enhance the collective efforts of both institutions equally. The AU must react objectively to the ICC’s efforts in preventing war crimes on the continent. It should use the presence of African states in the ICC to diplomatically assist the court in executing its functions impartially. It must also welcome the court’s critical role in global peace, security, and stability. Both institutions need to realize that open and co-operative multilateral relations between international organizations encourages harmony in the international system.
African Union, Constitutive Act of the African Union, (Addis Ababa, Ethiopia: AU, 2000), http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf
International Criminal Court, Rome Statute of the International Criminal Court, (The Hague, Netherlands: ICC, 2002)
International Criminal Court, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, (The Hague, Netherlands: ICC, 2009)
International Criminal Court Press Release, ICC underlines impartiality, reiterates commitment to cooperation with the African Union, (The Hague, Netherlands: ICC, 2013)