This weekend marks a very important moment in the history of international justice. In the wake of the controversial decision by the Kenyan Parliament to pass a motion to withdraw from the ICC, member states of the African Union (AU) are gathering in an extraordinary summit to discuss the possibility for African states to either withdraw from the Rome Statute or to end their cooperation with the ICC. Before analyzing the potential outcomes, here are couple of key points made by the AU Assembly in a report from May of this year:
“[The Assembly] DEEPLY REGRETS that the request by the African Union (AU) to the United Nations (UN) Security Council to defer the proceedings initiated against President Omar Al Bashir of The Sudan and Senior State Official of Kenya, in accordance with Article 16 of the Rome Statute of the International Criminal Court (ICC) on deferral of cases by the UN Security Council, has not been acted upon; […]
EXPRESSES CONCERN at the threat that the indictment of H.E Uhuru Muigai Kenyatta and H.E William Samoei Ruto, the President and Deputy-President of the Republic of Kenya respectively, may pose to the on-going efforts in the promotion of peace, national healing and reconciliation, as well as the rule of law and stability, not only in Kenya, but also in the Region.”
This weekend’s extraordinary summit seems to be a reaction to these regrets and concerns. But what would an en masse withdrawal from the Rome Statute by all its African members mean? Besides the strong political statement, would it have any actual impact on the ongoing cases before the ICC? Likely not–according to Art. 127(2) of the Rome Statute, a withdrawal by a state “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings […] which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” This means that even a very politically contested withdrawal of all the African members from the Rome Statute would not affect the ongoing proceedings, thus defeating what seems to be the AU’s main purpose.
On the other hand, the interruption of cooperation with the ICC by the AU members could be seen as both a more realistic and “effective” outcome of the summit, since cooperation gives States Parties to the Rome Statute strong leverage with the ICC. While the problem of cooperation has always been crucial for the effectiveness of the ICC, the timing of the AU extraordinary summit is particularly interesting as it comes just a few day after the release of the ICC 2012-13 annual report to the UN General Assembly, where cooperation featured prominently. As the report covered another increasingly busy year for the ICC, it also strongly emphasized the Court’s dependence on cooperation in order to accomplish its mandate. For example, while calling for general cooperation from the international community, the report also emphasizes the specific needs related to cooperation in the two situations referred by the Security Council: Darfur, Sudan and Libya.
In relation to Libya, the report states that the Court found Libya’s national system unable to carry out the proceedings in the case against Saif Al-Islam Gaddafi under Art. 17 of the Rome Statute and stressed Libya’s obligation to immediately surrender Mr. Gaddafi to the ICC. In the Al-Senussi case, the report recalls that on 6 February 2013, Pre-Trial Chamber I (PTC I) ordered the Libyan authorities to proceed with the immediate surrender of Abdullah Al-Senussi to the Court and to refrain from taking any action that would frustrate, hinder or delay compliance by Libya with its obligation to surrender him to the Court. Following an application challenging the admissibility of the case, however, PTC I decided today that Libyan competent authorities are willing and able to genuinely carry out such investigation. Therefore, the Judges concluded that the case is inadmissible before the Court. This decision does not affect Mr. Gaddafi’s case and Libya’s obligation to surrender him to the ICC.
In relation to Darfur, the report refers to information collected by the Office of the Prosecutor (OTP) indicating that crimes against humanity, war crimes and genocide continue to be allegedly committed by ICC indictees Ali Kushayb, Ahmad Harun and Abdel Raheem. The OTP also mentioned a meeting that the Head of the Office for the Coordination of Humanitarian Affairs had in Khartoum with President Al Bashir, Abdel Raheem Hussein and Ahmad Harun. While expressing appreciation for the UN assessment that the meeting was strictly required to carry out its mandate, the OTP encouraged the UN to conduct a critical analysis “to ensure that the gain to the United Nations is worth the costs of such contact, and does not instead embolden fugitives from justice to think that they will be rewarded for manipulating their way into positions of “indispensability” even as they continue to commit crimes.” Finally, the report specifically refers to the lack of cooperation from Nigeria and Chad in relation to official visits from Al Bashir in these countries.
The issues at stake in this extraordinary AU summit, including but by no means limited to cooperation, are evidently enormous for both international politics and justice. The responses from the Court’s supporters have thus been equally robust. Civil society all over the world is urging African leaders to uphold their commitment to the rule of law and accountability for international crimes through the ICC. The Coalition for the International Criminal Court (CICC) initiated an international campaign (#StaywiththeICC) calling upon African leaders to stand up for victims of atrocities by rejecting these attempts to promote impunity. In a recent statement, the CICC underlined how “[t]hose propagating withdrawal from, or ending cooperation with, the Court are endangering one of the strongest tools for peace ever” and encouraged African leaders to inspire states around the world to follow their example joining the Rome Statute and working to make it effective.
Civil society in Africa has been particularly vocal against the proposition for AU member states to withdraw from the Rome Statute or stop cooperating with the ICC. On 4 October, 120 African civil society organizations and international organizations with representatives in 34 African countries, wrote a letter to the Foreign Ministers of the African States Parties to the Rome Statute to urge their government to affirm their support for the ICC during the extraordinary AU summit. On 10 October, the International Campaign to Stop Rape & Gender Violence in Conflict, together with several Nobel laureates including Desmond Tutu, released a letter calling on the AU member states to back the ICC as a critical tool to fight gender and sexual violence. Desmond Tutu also started a petition to specifically ask the presidents of South Africa and Nigeria to “to speak out and ensure that the persecuted are protected by the ICC.”
The international community’s attention will be focused on Addis-Ababa for the next couple of days. From Sunday, we will have a better sense of what the future holds for the ICC in Africa, and beyond.