Africa: The African Union Can Contribute to the Future of International Criminal Justice in Africa

analysis

Since the early 1990s, Africa has been the hub of international criminal justice. In 1994, following the crimes committed in Rwanda, an ad hoc international tribunal for Rwanda was set up to prosecute alleged perpetrators. Similarly, the Special Court for Sierra Leone was established to prosecute those who bore the greatest responsibility for crimes committed during that country's civil war. More recently, all the cases before the International Criminal Court (ICC) are from African situations.

These initiatives are primarily in response to conflict-related atrocities and are an effort to fight impunity. The operation of these institutions on the continent has not been without controversy and challenges. The ICC in particular has been labelled as targeting Africa for various reasons and the African Union (AU) has been at the forefront in responding to the work of the ICC in Africa.

From 23 - 30 January 2012, the AU will hold its 18th ordinary summit in Addis Ababa. The theme of the summit focuses on boosting intra-African trade. Previous AU summits have discussed international criminal justice in Africa, an issue that is not overtly provided for during this summit. However, the summit presents an important opportunity for the AU to count the value that Africa has contributed and can continue to contribute to international criminal justice in Africa in particular and to international criminal justice generally.

In December 2011, the ICC Assembly of States Parties elected a new prosecutor, Fatou Bensouda from the Gambia. The fact that the new prosecutor is African is a milestone for the ICC and for the AU. Bensouda will take up office from June 2012. Her appointment presents the AU with impetus for cooperating with the ICC towards ending impunity and bringing perpetrators of international crimes to justice.

In previous AU Summits, the AU expressed dissatisfaction with the conduct of the outgoing Prosecutor of the ICC, Luis Moreno Ocampo and lent their support to the election of Bensouda. It is argued that Bensouda is an African who understands African challenges, prospects and opportunities and therefore is able and best suited to bring the African agenda to the ICC regime. It must however be noted that the Prosecutor will operate in an independent, transparent and accountable manner and her appointment will in no way influence cases from Africa or elsewhere.

In light of this, the AU has an important opportunity to shape international criminal justice in the interests of Africa. This can be achieved in various ways including through cooperating and supporting the new Prosecutor and with the court and encouraging state parties to do the same. To begin with, the AU should sign the outstanding Memorandum of Understanding (MoU) with the ICC and open the proposed liaison office for the ICC. This process will be an important beginning for dialogue and cooperation between the two institutions. The office need not necessarily be hosted in Addis Ababa, Ethiopia - the seat of the AU - but in any AU state that is willing to host it.

In addition, the AU should build up on the gains made thus far in Africa with regards to the ICC. In 2011, two additional African countries, Tunisia and Cape Verde, ratified the Rome Statute. Furthermore, it is believed that Egypt and the Ivory Coast also intend to ratify the Rome Statute. Another development is the declaration made by the Ivory Coast accepting the jurisdiction of the ICC and thereby paving the way for investigations into the post-election violence in that country. Last, but certainly not least, African countries continue to engage in domestic legislation processes. This presents an important keynote in encouraging states to support international criminal justice responses in Africa through various domestic related initiatives.

ICC cases from Africa still remain high, including investigations in Guinea and Nigeria. This should be viewed as positive in the sense that the engagement of the court in the continent represents the quest for justice for persons with the highest responsibility for international crimes, and to ending impunity in Africa. The AU has the moral authority to encourage it members to support the court's processes particularly in light of its Constitutive Act's commitment to ending of impunity. The appointment of an additional African Judge, Justice Chile Eboe-Osuji from Nigeria adds yet another African voice to international criminal justice.

As we face 2012, the AU should spearhead commitment to international criminal justice by viewing international criminal justice as a tool for peace building. In addition it should encourage state parties to the ICC to cooperate with the ICC. Of importance, the AU should foster the advancement of capacities of national level jurisdictions to handle trials for international crimes. Libya and Uganda have demonstrated important developments towards advancing domestic prosecutions for international crimes. Encouraging states to conduct domestic prosecutions is in line with the principle of complementarity, which recognises the ICC as a court of last resort and should only get involved in the event where states are either unable or unwilling to prosecute. In light of this, the AU should encourage states to advance capacity building for these institutions by drawing on the expertise of various service providers including civil society.

In addition, it is necessary for the AU to open up dialogue with the ICC in order to iron out issues that may have impacted on a smooth relationship with the court. It may also be necessary to develop a plan of action to end impunity or provide guidelines for addressing impunity with regards to international crimes in Africa.

The South African leadership of the United Nations Security Council (UNSC) this month is an important occasion to bring forth any issues relating to international criminal justice in Africa that may still be outstanding or that require the attention of the UNSC. South Africa is an important player in international criminal justice and as the current chair of the UNSC has the golden opportunity to add an African voice to international politics and law. However, it is important to note that it is not prudent to request the UNSC to defer investigations or prosecutions of persons wanted by the ICC for crimes committed against Africans where such is not warranted. The AU should always put the concerns of the victims before any considerations.

Africa has a large membership on the ICC with 33 members to the Rome Statute out of 120 globally. The AU should build on this momentum and encourage those states that are not party to the ICC to join and to continue being ardent proponents of the ICC as was the case during the 1998 negotiations in Rome that saw the establishment of the ICC. This African-wide membership would see Africa as the only continent with full membership to the Rome treaty, demonstrating its commitment to international justice. Additionally, the AU should encourage commitment and operationalisation of international treaties that its members sign up to.

In light of all the above, the AU is well placed to promote international criminal justice in Africa, a programme that can be spearheaded at the 18th Summit of the AU.

Jemima Njeri Kariri is senior researcher, Transnational Threats and International Crime Division, in the institute's Pretoria office.

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