21 January 2013

Africa: AU Must Combat Impunity for International Crimes

analysis

With the African Union (AU) Heads of State Summit getting underway next week in Ethiopia, many people will be eagerly watching how newly elected AU Chairperson, Nkosazana Dlamini-Zuma, oversees proceedings and the stance she adopts on critical issues facing the continent - such as impunity for international crimes.

Indeed, 140 civil society organisations have just written a letter to the AU Commission Chair to urge her to ensure that the AU does more to combat impunity for the gravest crimes.

The letter congratulates the Chair on her appointment, urges her to take up the cause of justice for victims of genocide, war crimes, and crimes against humanity, and offers five observations and recommendations which would help to promote that objective. In particular, the organisations call for her to help to mend the strained relationship between the AU and the International Criminal Court (ICC).

The importance of taking account of Africa's role in calling for ICC involvement in African countries

Although the ICC's current investigations are entirely in Africa, the majority of the court's investigations came about as a result of a request by the country where the crimes were committed (Uganda, Democratic Republic of Congo, Central African Republic, Côte d'Ivoire, and Mali). Two other investigations, Darfur and Libya, came about as a result of a UN Security Council referral. Notably, all African members on the Security Council at the time of these referrals voted in favour of them. The ICC prosecutor has in fact acted on his own authority to open an investigation without a request by the country where the crimes were committed in only one situation, Kenya. We believe that the ICC's current focus on African situations where serious crimes in violation of international law have been committed and the court's efforts to deliver justice to African victims should be welcomed, not criticized.

The importance of AU support to promote domestic capacity to prosecute serious crimes committed in violation of international law

The ICC is a court of last resort and is not intended to be the primary forum for the investigation and prosecution of serious crimes in violation of international law. The Rome Statute of the ICC envisages states themselves taking the lead in the investigation and prosecution of such crimes, consistent with what is known as the ICC's complementarity regime and framework. Yet, it remains the reality that far too few countries--including those in Africa--have the laws and capacity to prosecute serious crimes committed in violation of international law. Accordingly, we urge you to encourage AU member states to strengthen their criminal justice systems to address serious crimes committed in violation of international law.

Recognizing the strong support for the ICC in Africa

In addition to the African states that have asked for the ICC to open investigations into crimes committed on their territories, there also is a growing list of countries--including Botswana, Burkina Faso, Malawi, South Africa, Niger, Uganda, and Zambia--that have expressly stated that they will fulfill their obligations under the Rome Statute to arrest individuals subject to ICC arrest warrants, if they enter their territories. African support for the ICC is, however, often overlooked in AU decisions and communications, and we believe it is important that such support be better reflected in future AU action.

Expansion of the jurisdiction of the African Court

The AU has embarked on an initiative to expand the African Court of Justice and Human Rights (the African Court) to include jurisdiction over prosecutions of international crimes. We believe increased opportunities for justice are positive in principle, but it will be important to ensure that the court's expanded mandate is able to advance justice for all crimes under its jurisdiction.

Improve communications between the AU and the ICC

In the face of strained relations between the AU and the ICC, we believe increased communication would play a critical, positive role. The ICC previously sought to establish an AU-ICC Liaison Office in Addis Ababa. This is similar to an ICC liaison office that exists at the UN. We encourage you to revisit the establishment of such an office and move forward with its creation. Notably, African states parties previously wrote to the AU to expressly call for the office's creation.

The signatories to the letter have representation in 25 African countries and many of them have worked together in recent years on joint initiatives to promote justice for victims in Africa.

In light of their key role in the establishment and implementation of African regional human rights mechanisms and the International Criminal Court (ICC) and their interactions with victims, civil society organisations have critical expertise to offer to the AU. However, in the past there has been unwillingness on part of the AU to engage with civil society in a transparent and cooperative manner.

It is hoped that with Dlamini-Zuma at the helm of the AU, the institution will allow itself to be more accessible to civil society, and she will foster a constructive relationship with civil society, facilitating increased public participation and engagement between African civil society, the AU Institutions and Working Groups.

Below is the text of the letter and a list of all 140 signatories.

Dear AUC Chairperson HE Dr. Nkosazana Dlamini-Zuma:

We, the undersigned African civil society organizations and international organizations with a presence in Africa, wish to congratulate you on your election as Chairperson of the African Union Commission. We wish you well during your tenure and trust that your leadership will seek to further address key challenges facing the African continent to promote respect for the rule of law and human rights in order to serve the best interests of the people of Africa.

In this regard we write to urge you to address the issue of impunity for international crimes committed on the continent consistent with article 4 of the African Union's Constitutive Act. African countries have already contributed greatly to ensuring accountability for atrocities. The work of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, wide African membership in the International Criminal Court (ICC), and recent progress in the case of Hissène Habré are just some examples that are testament to this contribution and commitment.

However, it is notable that in recent years the relationship between the ICC and the African Union (AU) has become strained. Some AU and member state representatives have maintained a stance that the ICC is unfairly targeting Africa, and AU decisions have called for African states not to cooperate in surrender of Sudanese President Omar al-Bashir, who is sought by the ICC on charges of alleged crimes committed in Darfur, and former Libyan President Muammar Gaddafi, who was an ICC suspect prior to his death.

We believe that your role as AU Commission Chairperson provides important new opportunities for the AU to renew focus on ensuring redress for victims of serious crimes committed in violation of international law as an essential component of the AU's contribution to peace and security on the continent. In this effort, we wish to offer several observations and recommendations, which we believe will help to promote justice for the gravest violations of human rights. These are:

1. The importance of taking account of Africa's role in calling for ICC involvement in African countries

While some African leaders have asserted that the ICC is unfairly targeting Africans, we believe this conclusion overlooks important facts that should be incorporated into your analysis and public commentary on issues of justice for international crimes.

Although the ICC's current investigations are entirely in Africa, the majority of the court's investigations came about as a result of a request by the country where the crimes were committed (Uganda, Democratic Republic of Congo, Central African Republic, Côte d'Ivoire, and Mali). Two other investigations, Darfur and Libya, came about as a result of a United Nations (UN) Security Council referral. Notably, all African members on the Security Council at the time of these referrals voted in favor of them. The ICC prosecutor has in fact acted on his own authority to open an investigation without a request by the country where the crimes were committed in only one situation, Kenya.

We believe that the ICC's current focus on African situations where serious crimes in violation of international law have been committed and the court's efforts to deliver justice to African victims should be welcomed, not criticized. There are of course situations outside of Africa that cry out for ICC involvement, such as Syria, which have not been brought before the court. However, legal limitations on the court's jurisdiction make certain situations beyond the court's reach. Specifically, the ICC cannot assert jurisdiction over territories of states that have not become parties to the court unless the UN Security Council refers the situation or the state that is affected by the crimes asks the court to conduct an investigation.

The ability of permanent Security Council members to utilize their veto power has meant that council action has been influenced by political considerations and crippled the opportunities to advance justice in certain situations. It appears that much of the frustration that has emanated from the AU with regard to the ICC thus relates more to Security Council action than the court itself. Many of our organizations are currently working to ensure the Security Council acts more consistently and fairly on ensuring justice for international crimes. We encourage you to assist the AU in addressing concerns that relate to Security Council actions more directly. We believe that this would help ensure that the AU's views are more accurately conveyed and promote a more principled approach by the council.

2. The importance of AU support to promote domestic capacity to prosecute serious crimes committed in violation of international law

The ICC is a court of last resort and is not intended to be the primary forum for the investigation and prosecution of serious crimes in violation of international law. The Rome Statute of the ICC envisages states themselves taking the lead in the investigation and prosecution of such crimes, consistent with what is known as the ICC's complementarity regime and framework.

The ICC's intervention is limited to situations in which countries are either unable or unwilling to prosecute those suspected of criminal responsibility. Yet, it remains the reality that far too few countries--including those in Africa--have the laws and capacity to prosecute serious crimes committed in violation of international law.

Some African states have incorporated genocide, war crimes, crimes against humanity, principles of command responsibility, and cooperation with the ICC into their domestic law. Mauritius adopted such legislation in 2012, and other countries--including Burkina Faso, Central African Republic, Kenya, Senegal, South Africa, and Uganda--previously enacted such laws. However, the overall number of countries in the region with comprehensive legislation to prosecute these crimes remains under 10. Furthermore, many of the enacted legislations have flaws that could prevent the authorities from investigating or prosecuting the crimes in accordance with international law.

An important role for the AU, in our view, can be to assist states in enhancing their domestic technical and legislative capacity to dispense justice. Accordingly, we urge you to encourage AU member states to strengthen their criminal justice systems to address serious crimes committed in violation of international law. This will not only address AU concerns about justice efforts rendered outside the continent, but enable Africa to best ensure victims have access to redress. In addition, if national courts can ensure justice for crimes committed in their countries, public confidence in and respect for the rule of law in the affected countries and sub-regions will improve.

3. Recognizing the strong support for the ICC in Africa

African states make up a large regional bloc of parties to the Rome Statute of the ICC. Thirty-three African states out of 54 are already parties to the statute, and Africa's engagement played a pivotal role in the establishment of the court.

In addition to the African states that have asked for the ICC to open investigations into crimes committed on their territories, there also is a growing list of countries--including Botswana, Burkina Faso, Malawi, South Africa, Niger, Uganda, and Zambia--that have expressly stated that they will fulfill their obligations under the Rome Statute to arrest individuals subject to ICC arrest warrants, if they enter their territories.

African support for the ICC is, however, often overlooked in AU decisions and communications, and we believe it is important that such support be better reflected in future AU action. This includes the AU not renewing decisions that call for non-cooperation with the court, which run counter to African ICC states parties' obligations under the Rome Statute and the Constitutive Act of the AU. Such decisions also put African ICC states parties who do not wish to negate their international treaty obligations to cooperate with the ICC in a difficult situation.

4. Expansion of the jurisdiction of the African Court

The AU has embarked on an initiative to expand the African Court of Justice and Human Rights (the African Court) to include jurisdiction over prosecutions of international crimes. We believe increased opportunities for justice are positive in principle, but it will be important to ensure that the court's expanded mandate is able to advance justice for all crimes under its jurisdiction. In this regard, we have prepared a letter that outlines areas we believe merit further scrutiny in relation to proposed expansion, which is available at http://iccnow.org/documents

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