analysisBy Liesl Louw-Vaudran
For many Africans it was a slap in the face; yet another attempt by African leaders to protect themselves from being tried for the terrible atrocities committed while in power.
'Sitting heads of state should be immune from prosecution by the #ICC says #AU, giving free license 2 abusive leaders 2 commit crimes,' was one of the many comments on Twitter following the extraordinary meeting of the African Union (AU) on the International Criminal Court (ICC) on 12 October. Organisations like Human Rights Watch (HRW) said that the AU decisions '[run] counter to justice for victims'.
AU heads of state had agreed at the summit that the trials of Kenyan President Uhuru Kenyatta and his deputy William Ruto to be suspended until they completed their terms of office.
A further decision urged the suspension 'until such time as the UN Security Council (UNSC) considers the request by Kenya, supported by the AU, for a deferral'.
The AU also mandated a 'contact group' of five ministers of foreign affairs from each region to engage with the UNSC 'on all concerns of the AU on its relationship with the ICC'.
Much of this very heated and emotional debate on the ICC has been mired in misunderstandings over what the court has done in the past and what its statute allows it to do.
For example, following the extraordinary summit, Ethiopian Prime Minister Hailemariam Dessalegh said: 'We have agreed that no charges shall be commenced or continued before any international court or tribunal against any serving head of state or government.'
Experts say, however, that it is not up to the AU to make such a decision. Firstly, the AU is not a state party to the Rome Statute of the ICC. Secondly, the AU is an intra-governmental institution, unlike the European Union, which is a supra-national institution that can, in certain cases, make decisions that are binding to all EU member states.
At best, the AU decisions on the ICC could provide a 'cover' for individual parliaments to initiate a withdrawal from the ICC, as the Kenyan parliament has done. States can also lobby for a reform of the Rome Statute, which the AU has urged them to do.
Ultimately though, as the Kenya cases have shown, the conflict between the AU and the ICC is much more about politics than the law. Some analysts say the ball is now in the court of the UNSC to decide on a possible deferral of the Kenyan cases - a decision that would certainly appease the critics of the court.
'This issue is tied up with the reform of the UNSC,' said Anton du Plessis, acting executive director of the Institute for Security Studies (ISS) and head of its Transnational Threats and International Crime (TTIC) division, at a seminar on 10 October.
Earlier this week, French President Francois Hollande was asked during his state visit to South Africa whether France, as a permanent member of the UNSC, would agree to such a deferral. He didn't answer the question directly, but said France strongly supported the ICC 'and cannot accept impunity'. He said that there were two principles at play: respect for international justice and the sovereignty of states.
Analysts say the request for deferral will be a tricky issue for the UNSC. 'If they do it for Kenya, they'll have to explain why they can't do it for Sudan,' said Sivu Maqungo, a Senior Research Consultant in the ISS' TTIC division.
Hollande also said during the joint press conference with South Africa's President Jacob Zuma that France would be in favour of the 'simplification' of the procedures of the ICC. This was presumably in response to Zuma's assertion that Kenyatta and Ruto should be allowed to only attend parts of the trial. 'We are not supporting impunity, that's why we signed up for the ICC,' said Zuma. 'The problems came with the way the court handled the Kenyan issue.'
Interestingly, this is contrary to the common assumption that most African states have been harbouring resentment against the ICC ever since the arrest warrant against Sudan's Omar al-Bashir in 2009. Zuma reiterated that Kenyatta and Ruto were cooperating with the court, but that problems arose when they 'got the responsibility to run a country'. He said if both leaders were in The Hague at the same time 'the state would collapse'.
From remarks by Ruto at a press conference in The Hague following the AU summit, it looks as though he will continue attending his trial for the time being, despite the AU decision. And as HRW executive director Kenneth Roth remarked: 'The good news is the vast majority of African nations reject Kenyan leaders' efforts to secure mass ICC withdrawal.'
It is not yet clear what Kenyatta will do now. If he simply fails to turn up at court, it could prompt the ICC to issue an arrest warrant, as it did against al-Bashir. Everyone probably wants to avoid this.
Yet a decision should be made soon, since the start of his trial, on 12 November, is fast approaching.
Liesl Louw-Vaudran is an ISS consultant.