The long-running spat between the African Union (AU) and International Criminal Court (ICC) over perceived bias has prompted the AU to push ahead with plans to form its own Africa-wide criminal court, but analysts believe the move could complicate, rather than enhance, international justice.
“Africa wants regional ownership of its crimes and its leaders,” Alan Wallis, an international justice lawyer at the Johannesburg-based Southern African Litigation Centre (SALC), told IRIN, but pointed out: “There is a misbelief [by the AU] that Africa is being targeted, as all cases before the ICC concern African situations, but this ignores the fact that of those six [cases], three were referred to the ICC by the countries concerned.”
AU commission chairperson Jean Ping has accused ICC of “bullying” Africa, with a key bone of contention being the 2009 indictment of Sudan’s President Omar al-Bashir for alleged atrocities committed in Darfur.
Plans for an African criminal court moved into an advanced stage with a final draft protocol drawn up in the Ethiopian capital Addis Ababa on 15 May. It is widely expected to be adopted at an AU summit meeting of heads of state in July.
The venue for the summit was originally intended to be Malawi, but the host president, Joyce Banda, said it would honour its ICC obligations and arrest Sudan’s president should he attend. The meeting was subsequently switched to Addis Ababa.
Adoption of the new court, according to analysts, requires formalizing the crime of “unconstitutional change of government”, and it would require ratification by 15 AU member states - a process which could take a few years.
The jurisdiction envisaged by the new AU court replicates that of the ICC, covering such things as the major international crimes of genocide, war crimes and crimes against humanity - and adds others such as piracy, terrorism, mercenary activity, corruption, money-laundering, human and narcotics trafficking and the illegal exploitation of natural resources.
Calls by the AU “in the interests of peace and security” on the UN Security Council to defer or postpone legal proceedings against Bashir - and against the alleged instigators of Kenya’s post-electoral violence in 2008 - have fallen on deaf ears.
Stephen Arthur Lamony, Africa outreach liaison and situations adviser for the Coalition for the ICC, an umbrella organization of 2,500 civil society organizations in 150 countries, told IRIN: “The AU feels ignored”. He said AU requests to defer legal proceedings in the two cases would remain “a sticking point” between the AU and the ICC.
He added that the ICC had been attempting to establish an AU-ICC liaison office for “quite a while”, but had not met with success.
The African Court of Justice and Human Rights is supposed to be formed through a merger of the African Court on Human and People’s Rights and the AU Court of Justice, and is envisaged to comprise three sections: general affairs, human rights and international criminal law.
According to the court’s draft protocol, the AU Peace and Security Council and the office of the prosecutor will be eligible to submit cases; the court’s jurisdiction for international crimes will commence after its inception. This means that the court would not trump current cases being considered by the ICC regarding the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, Libya, Kenya and Sudan.
|Here is a completely new creature - a regional criminal court, with identical jurisdiction to the ICC|
Wallis said the court’s composition, combining a human rights function and criminal prosecutorial powers was “unprecedented” under international law, and the process appeared to be rushed. “Here is a completely new creature - a regional criminal court, with identical jurisdiction to the ICC, but with no bridges between the two and it is difficult to anticipate the potential implications and challenges.”
Where the ICC will fit in, if at all, was unclear. Lamony said the ICC has agreements with national courts but not with regional courts. Wallis foresees confusion should the AU court materialize. “In this regard guidance to African ICC states parties on balancing the relationship between obligations assumed through their ratification of the Rome Statute and the anticipated obligations imposed by the proposed expansion, and the legal implications, should be properly canvassed through further state engagement. A wait-and-see approach may do more harm than good.”
Jonathan O’Donohue, Amnesty International’s legal adviser for international justice, told IRIN: “The ICC already exists, but it does not seem clear and it is not set out if there is any relationship between the ICC and the [proposed] regional criminal court. There is a danger of duplication [between the two international criminal courts] and also the potential for conflict over jurisdiction. This needs to be resolved before it goes any further.”
Weapon of the West?
In 2009, the AU adopted the Sirte Resolution calling for non-cooperation by African ICC member states in the arrest of Bashir. Malawi (during the presidency of the late Bingu wa Mutharika), Chad, Kenya and Djibouti - all ICC state parties - have hosted Bashir since the arrest warrant was issued and did not apprehend him.
|The ICC was established by the Rome Statute in July 1998 and the court entered into force four years later and now counts 121 state parties - 33 of which are African - but noticeable by their absence are the USA, Russia, China, Israel, Sudan and India among others.
Established as an international court of “last resort”, it was designed to pick up the slack should domestic laws or local criminal justice systems be unable to proceed against the major international crimes of genocide, war crimes and crimes against humanity. In August 2002 South Africa became the first African state to enact the Rome Statute’s provisions into its domestic law, and is only one of four African states to have complied so far.
In a 2010 Institute for Security Studies monograph entitled The International Criminal Court that Africa Wants, the author, Max du Plessis, a practising advocate and associate professor of law at South Africa’s University of KwaZulu-Natal, cites Bashir’s arrest warrant as the “flashpoint” that spawned a raft of allegations by the AU against the ICC, with the AU accusing the ICC of being “a hegemonic tool of Western powers” and of having double standards.
Don Deya, an advocate of the High Court of Kenya and CEO of Pan African Lawyers Union which was tasked with drawing-up the legal foundations of the AU’s regional court, said in a March 2012 article for the Open Society Initiative for Southern Africa entitled; Is the African Court Worth the Wait? that there was no reason an African court and the ICC could not work “harmoniously” to end impunity for international crimes, “despite the current bitter divide between Africa and the ICC”.
Deya said in the article that the genesis for the African criminal court was not the “furore” surrounding Bashir, but three other pertinent issues - universal jurisdiction, Senegal’s impending prosecution of former Chadian President Hissene Habré, and formulation of the international crime of “unconstitutional change of government”.
A French court’s November 2006 arrest warrant for, and subsequent arrest of, Rose Kabuye, the post-genocide Rwandan chief of protocol, in Germany in 2008 was “a turning point”, Deya said: The AU determined that “African states… try international crimes on African soil.”
Is it affordable?
An AU report following a two-day meeting of justice ministers and attorney-generals in May 2012, attended by 29 African states as well as representatives of the African Court on Human and People’s Rights, the Pan African Parliament and the Africa Prosecutors Association, highlighted the cost implications of establishing an international criminal court.
“Technically it is not a bad idea on paper. Any forum that seeks to punish perpetrators of international crime is a good idea. But the concern is that you create this institution which may take years to formally get off the ground, but technically could nonetheless allow for 'forum shopping’ by providing a choice between the African criminal court and the ICC, and could delay prosecutions and frustrate efforts at accountability,” Wallis said.
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Lamony said many AU member states do not pay their fees, which handicaps the continental body’s operations. “I do not know where they will get the money from [for the court]. In the past [former Libyan president] Muammar Gaddafi would have probably contributed.”
O’Donohue said there were also concerns that the proposed combined AU court could see the criminal functions of the court drain resources from the already under-resourced human rights court and there “needs to be clarity on the budgetary system”.
The estimated average cost of an ICC trial is about US$20 million or 14 percent of the AU’s overall annual budget. The ICC trial of former Liberian President Charles Taylor cost about $50 million. The 2011 costs for the Special Court of Sierra Leone (SCSL) were $16 million, while the International Criminal Tribunal for Rwanda (ICTR) had a budget of $130 million in 2010, with 800 staff involved in simultaneous trials.
The cost of individual criminal trials far outweighs those of civil and human rights cases, Wallis said, adding: “The nature of international criminal proceedings makes them extremely resource intensive. Insufficient funding has the potential to prevent the proper dispensation of justice and could raise questions about the integrity and credibility of the court’s future proceedings…
“There is no excuse in this day and age to make anything less than a perfect criminal court… The experience of international criminal tribunals demonstrates that states’ broad support is essential to arrests and assistance in investigations. The conceptualization of a regional criminal tribunal must take into consideration the experiences and shortcomings of other international criminal tribunals such as the Special Court for Sierra Leone, the International Criminal Tribunal for the former Yugoslavia and ICTR and the ICC, so as to avoid problems down the line.”