analysisBy Jemima Kariri and Thobeka Mayekiso
The tension between the African Union (AU) and the International Criminal Court (ICC) has been well documented. Last year, the AU called for the cases against the leaders of Kenya and Sudan to be deferred, and member states have reportedly been encouraged to 'speak with one voice' against the prosecution of African heads of states for international crimes by the ICC.
Some 34 African states are members of the ICC, and all parties to the ICC's Rome Statute are accountable to its intentions to bring justice to victims and punish perpetrators responsible for war crimes, crimes against humanity and genocide.
The AU's anti-ICC stance has resulted in further disillusionment for victims of these crimes and has reinforced perceptions of a culture of impunity on the continent.
Calls of this nature are increasingly worrisome as new reports of serious crimes emerge from continued conflict in the Central Africa Republic (CAR) and South Sudan.
These crises in the CAR and South Sudan took centre stage at the AU Summit in January. They may present new challenges for international criminal justice in Africa, especially after the UN Secretary General called for the prosecution of perpetrators of human rights violations in South Sudan, and observers have called for the ICC to investigate and prosecute the perpetrators.
Unlike the CAR, which has ratified the Rome Statute, South Sudan is not a member of the ICC. This means that for the Court to get involved, the United Nations Security Council will need to refer grave crimes in South Sudan to the ICC for investigation.
The AU's unwavering position on the ICC has perhaps also overshadowed significant progress made in promoting international justice in Africa. The AU has responded to the violent conflict in South Sudan by setting up a Commission of Inquiry.
This is an important initiative, provided the findings of the Commission are timely and its recommendations prioritise conflict prevention mechanisms that include the promotion of justice.
It is important for Africa that international criminal justice is not merely seen to be about the ICC. Indeed, the continent has come a long way in the pursuit of international criminal justice.
The International Criminal Tribunal for Rwanda (ICTR) was established in 1994 to try those most responsible for the genocide, and the cases that have been transferred to Rwanda for prosecution at national level are progressing well. The Special Court for Sierra Leone (SCSL) has dealt successfully with crimes committed in that country.
In addition, Uganda's International Crimes Division of the High Court and the yet-to-be operational International Crimes Division of the High Court of Kenya will deal with international crimes, among others. These are important initiatives at the national level, but they require ongoing support and political will to succeed.
As espoused in the AU's Constitutive Act, Africa is committed to peace and security and also to ending impunity. The AU has been at the forefront, however, of promoting peace before justice in order to promote reconciliation.
The AU High Panel on Sudan (the Mbeki Panel) presented credible recommendations towards bringing peace to Sudan, yet also recognised the role of the ICC. Important aspects of the recommendations are yet to be implemented.
In Kenya, following the 2007/08 post-election violence, the AU was prompt in sending a mission to explore how the conflict can be ended.
It spearheaded the peace processes, which resulted in the government of national unity. The Kenyan cases currently before the ICC are an outcome of the Waki Commission on Post-Election Violence, but the recommendations of the Commission are yet to be fully embraced.
The AU is also moving towards the African Transitional Justice Policy Framework (ATJF), which is an outcome of a report of the AU's Panel of the Wise that addressed peace, justice and reconciliation in Africa.
The report recommends the development of a Transitional Justice Policy Framework to assist the AU and member states to recognise and undertake their obligations in ensuring protection from and accountability for violations.
The framework is expected to be adopted in the near future and will play an important role in terms of peace, justice and reconciliation in Africa. Political support for this framework to become fully operational is essential.
The proposed expansion of the jurisdiction of the African Court of Justice and Human Rights (African Court) to serve as a mechanism for international criminal justice could also be a welcomed solution to the current impasse.
There is great potential for it to set a regional standard in promoting accountability for grave crimes. However, serious concerns remain over the application of international criminal justice in the regional court system. Setting up such a regional court is an expensive and complex undertaking, as has been observed from the experiences of the ICC.
The draft court protocol does not provide for immunity from prosecution for heads of state, so how this would relate to national constitutions that do provide such immunity will also have to be addressed.
It is clear that in only a few cases are national institutions able to investigate and prosecute these crimes (including providing services such as witness protection), and manage without the involvement of regional or international mechanisms. This will all determine how Africa will fare in terms of addressing impunity for international crimes.
Africa finds itself at a delicate time. There are many developments towards ending impunity and promoting peace and justice, but more needs to be done to fully realise the agenda of peace and security in Africa.
The AU stance on the ICC should not divert attention from the important project of delivering justice for grave crimes in Africa. This project should continue to focus on the resolve for the twin processes of peace and justice to prevail. Governments, development partners, and civil society all have significant roles to play.
Jemima Kariri, Senior Researcher and Thobeka Mayekiso, Consultant, Transnational Threats and International Crime Division, ISS Pretoria