by Kimberly Brody
Senior Program Associate, Rights & Justice Initiatives
On October 11 and 12, the African Union (AU) held an extraordinary summit to discuss its relationship with the International Criminal Court (ICC). Although the court's supporters were able to defeat a proposal to withdraw en masse from the ICC, member states voted unanimously to declare that heads of state should not be tried while in office, a clear blow to accountability for international crimes on the continent. Since the summit, the ICC and the UN Security Council have made important decisions that will continue to affect the court's standing in Africa and particularly in Kenya. African countries remain central to the success of the court, with 34 having ratified the Rome Statute. But after several tumultuous weeks, the ICC's future in Africa is quite uncertain.
While there is no public and official listing of how countries voted during last month's AU summit, Think Africa Press has reported that the member states calling for withdrawal from the ICC included the usual suspects--Ethiopia, Kenya, Zimbabwe, and Sudan--as well as more surprising voices of dissent, such as Ghana, Malawi, South Africa, and even Uganda. On the other side, countries including Côte d'Ivoire, Mali, Botswana, and The Gambia are believed to have supported continued engagement with the ICC. These results show no clear regional divisions, and both sides include countries with histories of massive human rights violations, though some of the detractors have historically been the worst offenders. Some analysts have suggested that West Africa is now the main base of support for the court, but it is clear that this region alone could not prevent a vote to withdraw, and that support from other parts of Africa was also important.
In its Decision on Africa's Relationship with the International Criminal Court, the AU reiterated its "concern on the politicization and misuse of indictments against African leaders by the ICC" and suggested that prosecutions against heads of state, like President Uhuru Kenyatta and Deputy President William Ruto of Kenya, "could undermine sovereignty, stability, and peace." The summit decided that heads of state should not be tried during their tenure in office and stated that the trials of Kenya's president and deputy president should be suspended. Both men are charged with crimes against humanity related to postelection violence that resulted in over 1,200 deaths and the displacement of approximately 600,000 people in 2007 and 2008. In his closing remarks at the end of the session, Ethiopian prime minister Hailemariam Desalegn said, "I believe our meeting today ... has clearly reflected our disappointment as far as Africa's relationship with the ICC is concerned," and that the decisions made "safeguard the constitutional order, stability, and integrity of member states."
In practice, however, the AU's position seems likely to weaken the order, stability, and integrity of African nations. It would leave individuals accused of massive human rights violations in office without any clear judgment as to their guilt or innocence, damaging their legitimacy and encouraging impunity for lower-level crimes. Victims would be denied justice, and citizens in general would be less able to hold their leaders accountable for alleged abuses.
The decisions made at the AU summit could also pave the way for further clashes between African governments and the ICC, even if the immediate threat of a full AU withdrawal was averted. The bloc's declarations are simply incompatible with the laws that govern the court. Article 27 of the Rome Statute, which so many African countries have endorsed, is unequivocal in stating that the court will not make any distinction based on official capacity, and that high-level government positions "shall in no case exempt a person from criminal responsibility" through the ICC. While the legal basis for the court has not changed since countries such as Kenya signed the statute, the political will to implement it has clearly eroded.
Since the AU gathering, the ICC has released several important decisions of its own that will also influence its relationship with Africa. In mid-October, an ICC appeals panel ruled that Ruto must travel to The Hague to attend his trial, and that each absence must be individually approved by a judge. The following week, the ICC postponed Kenyatta's trial after the prosecution agreed to a defense request, marking the third postponement of the case. The trial will now start on February 5, 2014, to give both sides more time to prepare their evidence. Both of these decisions have been subject to conflicting political interpretations, and neither dispels the uncertainty over how the ICC will respond to Kenya's position on the trials in the long run.
On November 14, the UN Security Council rejected a request to further postpone the cases against Kenyatta and Ruto. In the meantime, Kenyatta's government is seeking to prosecute 15 witnesses who plan to testify against him at the ICC for crimes committed in Kenya. Further complicating the picture, Nigeria and other states have come out with strong statements in support of the court since the AU vote, while the authorities in places like Sudan and Kenya have cracked down on civil society and protesters, restricting local voices that could criticize their government's position.
The outcome of this struggle is still in doubt, and it is essential for the ICC to defend itself against claims of politicization or bias. The court must counter these allegations in a transparent and fact-based manner, while also acknowledging its flaws. For its part, the Security Council will need to explain why it has not sent the ICC more cases of mass atrocities outside Africa--in countries including Sri Lanka and Syria--to increase accountability for international crimes in other regions of the world. Finally, citizens, civil society, and governments in Africa must continue to demand that the AU keep its commitments to human rights and the rule of law. A sustained debate about the role of the ICC will hopefully lead to a sustained discussion about the need to strengthen domestic and regional legal systems, which would make recourse to The Hague unnecessary.
This post originally appeared on Freedom House's blog, Freedom at Issue.