Tom Maguire (University of Leeds)
On the 2 December 2011, Sudan’s defence minister Abdelrahim Mohamed Hussein became the latest target of ICC Chief Prosecutor Luis Moreno-Ocampo investigations into war crimes and crime against humanity committed in Darfur between 2003 and 2004. In an attempt to “to encourage further public focus” on Sudan’s policy and actions , the ICC announced that it hoped for prompt co-operation to arrest Hussein and the three Sudanese officials that have already been indicted, including the country’s current president Omar Bashir.
Two months previous, Laurent Gbagbo, former leader of the Ivory Coast, arrived at the International Criminal Court (ICC) at the Hague on four counts of crimes against humanity – murder, rape and other forms of sexual violence, persecution and “other inhuman acts”. The charges were allegedly committed between the 16 December 2010 and 12 April 2011 following the country’s disputed election which led to widespread violence and over 3000 deaths in the country’s capital, Yamoussoukro. He will become the first head of state to be tried in the ICC since it was set up in 2002.
In Kenya, the ICC have rejected an appeal by the Kenyan government to try the 6 suspects, named by the ICC as those most responsible for the orchestration of the post-election violence in 2007, within the country’s national judiciary. Despite this suspected attempt to deter the ICC from issuing arrest warrants for the accused, all six suspects have now been transferred to the Hague where preliminary hearings are already underway.
As the ICC slowly bares its teeth, African leaders are beginning to view the court more nervously. Although many African states played a crucial role in the negotiations that lead to the ICCs establishment, for many African leaders the ICCs investigations are now too close to home. Currently, Africa is the scene for all the cases being investigated or prosecuted: in the Central African Republic (CAR), Democratic Republic of Congo (DRC), Cote d’Ivoire, Kenya, Libya, Sudan and Uganda. As the number of arrest warrants for African leaders continues to rise, the African Union have accused the ICC of unfairly targeting African countries.
In an attempt to undermine the Court, the AU have called for non-cooperation by AU member states in the arrest of President al-Bashir. This deliberate initiative appears to have worked. Last month, Malawi’s President Bingu wa Mutharika rejected calls to arrest Bashir, during his visit to the country’s capital, Lilongwe. Despite intensive lobbying by the European Union and Human Rights groups , Malawi insisted that it is “not its business” to arrest Bashir. Kenya and Chad, also signatories to the Rome Statue setting up the ICC, have also allowed Bashir to visit. At the January 2011 summit, the AU endorsed Kenya’s request to delay the ICCs trial of those accused of organising the post-election violence. Although this request has since been rejected by the ICC, it is illustrative of the extent to which African leaders are uniting to limit the ICCs reach.
At the AUS most recent summit in Malabo, Equatorial Guinea, AU leaders finalized the decision to expand the jurisdiction of the African Court of Justice and Human Rights (African Court) to include prosecutions of individuals for genocide, war crimes and crimes against humanity. Whilst increased avenues for accountability are positive in principle, the suspected motives behind the proposed expansion have been questioned by human rights advocates , who see the move as a deliberate attempt to circumvent the ICC. Richard Dicker of Human Rights Watch views the AUs attempt to create a court capable of prosecuting war crimes and crimes against humanity as a deliberate strategy to protect African leaders from further ICC investigations. It is suspected that AU leaders will hope that the ICC will not try any suspect that has already been investigated by a regional court with a jurisdiction that covers war crimes, genocide and crimes against humanity.
It may not work. The African Court, under the AU’s aegis, have issued just 6 rulings despite being in operation since 2006. The lack of cases is not surprising considering that access to the Court is limited to the African Commission, states parties to the Protocol on the Establishment of the African Court and intergovernmental organizations. Individuals and NGOs can only bring cases before the Court if the state party concerned makes a declaration accepting the competence of the Court to receive such cases. So far only 5 state parties- Burkina Faso, Ghana, Malawi, Mali and Tanzania-have made this declaration. In the absence of avenues for non-state parties to submit complaints to the African Court, the Court must rely on African leaders to forward allegations of war crimes or crimes against humanity against other African leaders. Typically, African leader have tended to protect their neighbours from international investigations. This is unlikely to change.
Interestingly, the African Commission can refer cases submitted by non-state parties to the African Court, should the Commission believe that the accused has failed to comply with its judgement. Although this set-up has the potential for non-state parties to have their complaints dealt with by a formal legal body , the two bodies are yet to develop a reciprocal relationship and so far just three case has been referred by the Commission to the Court.
Even if the African Court does attempt to prosecute individuals for any of the above listed crimes, there is no clear legal provision in the Rome Statue that states that a case cannot be investigated if it has been adequately dealt with within a regional court. The ICC will only declare a case inadmissible if the country in question has a competent, independent justice system that is willing to prosecute a case.
Time will tell how the Court will respond. Nevertheless, this suspected attempt on the part of AU leaders to circumvent ICC investigations, is unlikely to deter the ICC from continuing its investigations into some of the gravest crimes committed in recent decades and bringing those responsible to justice.
Further Information can be found from the following sources:
African Union calls to back Kenya Delay of ICC Trial : http://www.bbc.co.uk/news/world-africa-12332563
Ivory Coast asks ICC to investigate human rights crimes: http://www.bbc.co.uk/news/world-africa-13451533
ICC seeks Sudan Defence Minister arrest over Darfur: http://www.bbc.co.uk/news/world-africa-16003299
Observations and Recommendations on the International Criminal Court and the African Union : http://www.hrw.org/en/news/2011/06/20/observations-and-recommendations-international-criminal-court-and-african-union
The International Criminal Court bares its teeth. The Economist
Omar Bashir arrest request rejected by Malawi: http://www.bbc.co.uk/news/world-africa-15308198
The African Court on Human and Peoples Rights: http://www.african-court.org/en/
Tom Maguire( University of Leeds, BA International Development and Politics)