Unplanned obsolescence: The ICC and the African Union

The opposition of many African governments to the ICC is not new. Since 2008 when Moreno Ocampo, former ICC Prosecutor, launched charges against Sudanese President Bashir, African governments, acting within the framework of the African Union, issued a number of declarations expressing increasing discontent about the process of the ICC on the content.

It has now reached a new height following the decision of the AU for holding an extraordinary summit to discuss on the mass withdrawal of African member states of the Rome Statute, establishing the ICC. The resort to such extraordinary measure, unprecedented in the history of the international legal order, has understandably sent shockwaves across many capitals in Europe and among the mainstream international human rights community.

Extraordinary summit to debate future of ICC

The recent surge in AU’s opposition to ICC arose with specific reference to the on-going cases against the newly elected leaders of Kenya, President Uhuru Kenyata and Vice President William Ruto. It is to be recalled that in its May 2013 summit the AU Assembly took the decision requesting ICC to refer the cases back to Kenya. On July 8 2013, the AU sent a letter to the President of ICC communicating the decision of the assembly and urging ICC to allow a national process to deal with the cases. 

In the meantime, the ICC commenced the trial of Kenya’s vice President William Ruto in September 2013. In what many African governments considered to be a further disregard of their voice, an earlier decision of the trial Chamber of the ICC allowing the trial of Kenyan leaders in their absence was suspended pending the decision of the appellate Chamber of the Court on the Prosecutor’s appeal for reversing that decision.

In another letter addressed to ICC, the AU reiterated its earlier communications to the ICC and in the context of the commencement of Vice President Ruto’s trial, requested the Court ‘to allow the Head of State of Kenya and his deputy to choose the sessions they wish to attend’ having regard to the constitutional obligations that they are required to discharge as leaders of Kenya’s popularly elected government.

Following the ICC’s response to the AU’s letter that the request that the AU made does not constitute a request legally presented within the Court’s legal framework, the AU has called for an extraordinary summit taking place on 12 October 2013 to debate the future of Africa’s relationship with the ICC. The summit was called in accordance with the rules of the AU after Kenya’s request for such summit received the support of two-thirds majority of members of the AU.  

What is at stake for ICC?

Africa played a key role in the establishment of the ICC in 1998. It is the continent with the largest regional grouping of member states of the Rome Statute. While there are 122 states that are party to the ICC, 34 of them are African states.

Now, this largest regional membership of the ICC is under threat. Last month, Kenya’s parliament adopted a motion for Kenya’s withdrawal from ICC. During the extraordinary summit on October 12, withdrawal of other African members of the ICC will be discussed.

During the meeting of the General Assembly in New York held at the end of September, a number of African leaders including current AU Chairperson Ethiopian Prime Minister and the presidents of Uganda, Tanzania and Rwanda expressed their disappointment over ‘the failure’ of ICC to have regard to their repeated appeals on the Kenyan cases. Tanzanian President, Jakaya Kikwete, said ‘The ICC continues to ignore repeated requests and appeals by the African Union’ and this ‘attitude has become a major handicap that fails to reconcile the court’s secondary and complementary role in fighting impunity’.  

In the light of these discontents, the agenda of the extraordinary summit on withdrawal from ICC challenges not only the legitimacy but also (and importantly) the very future of the ICC. There is accordingly a palpable apprehension in many western capitals on the damage this may cause.

Apart from the above, there are two more issues at stake for the ICC. First, all of the cases that ICC currently deals with are from Africa. The lack of confidence African member states are expressing may lead to strong reluctance on the part African member states to cooperate with the ICC. This would seriously threaten ICC’s ability to effectively and successfully adjudicate these cases.

Second, if the current ICC files are anything to go by, Africa is also the continent from where the ICC expects to receive much of its future cases. If African states withdraw from the ICC, the Court faces a bleak prospect of having no cases to adjudicate. The only framework that would be left for the ICC for initiating cases in Africa is the UN Security Council referral under Article 16 of the Rome Statute, a very politically charged and contentious avenue whose legitimacy is severely contested.  

What is at stake for Kenya’s newly elected government and other African governments?  

Following the commencement of vice president Ruto’s trial and in the context of the anticipated opening of President Kenyata’s trial early next month, it has become clear that Kenya’s newly elected government is faced with the challenge of not having a full time and effective leadership. Given that the ICC trials are sure to be time taking and very protracted, the accused would be forced into making a choice between participating in the trial and discharging their responsibilities as leaders of kenya’s elected government.

This is a tension seemingly between the requirements of international justice within the framework of ICC and an outcome of an electoral democratic process.

Indeed, the current acrimony between AU and ICC is immediately about this tension between ICC trials in which the defendants are required to attend regularly and the constitutional responsibilities that they have as Kenyan leaders. According to its letter of 10 September, AU is of the view that the ICC proceedings on Ruto and Uhuru ‘are beginning to adversely affect the ability of the Kenyan leaders in discharging their constitutional responsibilities’. Admittedly, if these leaders are unable to discharge their responsibilities effectively due to contending demands of their trials on their time and focus, Kenya would be constrained in terms of its ability to implement the policies of the new government and to participate in international affairs of direct concern for the country.

Without the agreement of the Court for the trial to continue in the absence of the accused, President Kenyata and vice President Ruto may end up opting for missing attending their trials in The Hague. Should this happen, the duo would face the prospect of being on the uncomfortable shoes of Sudan’s President Bashir, a prospect that would have serious consequences not only for the two as individuals but for Kenya as well.

As far as many other African governments is concerned, the greatest concern is the impossibility of guaranteeing that tomorrow other African leaders would not be dragged into the ICC process. While personal interest of African leaders looms very large in here, this concern also speaks to the reality of global power politics that insulates leaders of major powers of the world, who undertake various military operations in various parts of the world, from ICC processes, a protection to which African leaders have no access.  

Outcome of the summit

Although it is prominent on the agenda of AU’s extraordinary summit, mass withdrawal of African member states of ICC is an unlikely outcome of the summit. There is very slim chance that a consensus would be reached among African states for taking a decision requiring African states to withdraw from the ICC. Of course, the possibility of some countries to opt for withdrawal could not be totally written off either.

The most immediate concern for the Summit is how to secure for the Kenyan leaders the opportunity of not attending all sessions of their trials. As President Jacob Zuma of South Africa reportedly stated recently, there is strong consensus that this is a compromise that should also be acceptable for the ICC.

While the ICC’s Appeals Chamber of has yet to hand down judgement on this issue, it is unlikely that the court would totally disregard a position AU member states might have adopted by consensus. We may witness a fast tracking of the consideration of the appeal. And, if the ICC’s Appeals Chamber rejects the Prosecutor’s appeal and upholds the Trial Chamber’s decision allowing the Kenyan leaders to attend the sessions of their trials at their convenience, it would ease the frustration African states continue to express against the ICC. Admittedly, these may not be the considerations that would legally determine the decision of the Appeals Chamber.

Apart from these, the Summit decision would highlight several issues relating to the ICC over which concerns have been expressed since the institution has come into existence.

One such issue is the debate on peace and justice. As the AU underscored in its previous decisions and as hinted in President Kikwete’s comment above, the summit would likely insist that the ICC process should first allow concerned societies to make effective use of their domestic policy space for using all the tools available for achieving national reconciliation, peace and justice comprehensively. In this context, the summit may take a decision for fast tracking the process for adopting the Protocol on the extension of criminal jurisdiction to the African Court.

The other issue on which the Summit may also take a decision relates to Article 13 (b) and Article 16 of the Rome Statute, which provide extraordinary power to the UN Security Council to refer situations and to request the ICC to defer an on-going investigation or prosecution respectively. On this, the AU Summit may urge African members of the ICC to propose changes to these provisions vesting these powers in the General Assembly rather than the UN Security Council as part of the review of ICC by the Assembly of States Parties of the Rome Statute.

It may as well be appropriate that the entire ICC membership uses this debate as an opportunity for critically looking into areas that require fixing for regaining confidence of the entire membership on ICC and putting the institution on a more sold footing. Indeed, the President of the Assembly of States Parties in a letter she addressed to the AU invited African member states to use their meeting for ‘consolidating suggestions to be presented to all States Parties, bringing forward ideas and concrete proposals for action to the Assembly’, which will hold its annual meeting in The Hague on 20-28 November 2013.

Looking into the future, given that ICC is not operating in an ideal global political environment and in the absence of some changes to the ICC process including prosecution of ICC crimes taking place outside Africa, the bitter tension between African states and the ICC is likely to continue erupting in future cases as well. 

Dr Solomon Ayele Dersso, a legal scholar and analyst of African international affairs who writes on current African issues, is a senior researcher at the Institute for Security Studies, Addis Ababa Office.