No black and white answers in the stand-off between the AU and the ICC

Note from the Executive Director: FANIE DU TOIT

The current stand-off between the International Criminal Court (ICC) and the African Union (AU), precipitated by the indictment of Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity in Darfur, illustrates how different ideas about the rule of law can lead to serious tension and mutual recriminations of impunity, injustice or hypocrisy – despite the fact that all seem to agree on the need for post-conflict justice.

Promoting transitional justice is however immensely complex, as illustrated by the ICC and the AU’s dramatic clash. The international community now recognises that the ‘rule of law’ in both its formal and substantive senses needs to be pursued as an outcome of peace. In the formal sense, the rule of law is understood as the consistent and context- sensitive application of laws. In its substantive sense, the rule of law is seen as the adherence to international human rights norms and standards.

Recently the AU circulated a draft decision in which it, firstly, noted ‘with grave concern’ the unfortunate consequences that the Bashir indictment has had ‘on the delicate peace processes underway in The Sudan’ and, secondly, announced its decision not to cooperate with the ICC in respect of ‘the arrest and surrender of African indicted personalities’. The statement furthermore expressed ‘deep regret’ that the United Nations ignored the AU’s previous demand to postpone the arrest warrant against al-Bashir.

At the same time, the draft resolution calls on member states to improve cooperation and capacity-building on the ‘drafting and scrutiny of model legislation dealing with serious crime of international concern, training members of police and the judiciary, and the strengthening of cooperation amongst judicial and investigative agencies’.

This decision appears to place the 30 AU member states that are signatories to the Rome Statute, including South Africa, in a difficult position by forcing them to choose between international legal obligations and continental solidarity. The reality is that for most African states continental solidarity and regional interest will probably continue to trump international obligations, even though one would hope for a different approach.

Possible AU compliance with the ICC is further being eroded by the perception that the ICC had failed to take seriously the AU’s request to defer the Bashir case, and to ensure that its actions did not fly in the face of the AU’s peace efforts in Darfur. Thus, the ICC exposed itself to accusations of pursuing its own agenda irrespective of the consequences
and concerns articulated by the AU.

Predictably, international lobby groups have condemned the AU position. They are suggesting that the body is not serious about upholding the highest international human-rights norms and standards.

The AU has amongst its members some of the world’s more expedient and compromised political leaders, including al-Bashir, and their decision contains more than a little political expediency. However, to define the AU’s decision to refuse to work with the ICC as a wholesale choice for impunity is too extreme. Indeed, the AU has categorically stated that it is against impunity. At the very least, the international response needs to take seriously the AU’s counter-argument.

Whereas human-rights groups accuse the AU of not living up to the rule of law in the substantive sense, the AU’s counter claim is that the ICC is not applying the rule of law in the formal sense. It believes the ICC is not exercising its mandate consistently or with the necessary political discretion provided for in Article 15 of the Rome Statute.

It seems that unless the ICC institutes a whole range of investigations, not only against the heads of poor African states, but also in more powerful nations elsewhere where human rights are consistently flouted, and unless it finds ways to synergise its work with regional initiatives and national jurisdictions, it will continue to lack the public credibility in Africa it needs in order to operate effectively.

At the heart of the debate is the political question of how to manage post-conflict transitional justice. Africa, perhaps more than any other region, stands to benefit from international institutions of justice, but justice has to be consistently applied globally, and with the requisite political discretion. The debate about how these institutions should look and what their mandate must be has only just begun. Evidently, it is a debate too important to rush. According to analysts, one suggestion on the table is to consider reopening the Rome discussions, not only to get the US on board, but also to address ongoing African concerns with how indictments impact upon peace processes.

While we continue to work towards credible international institutions that can provide justice to victims in societies where the state itself is unwilling or unable to do so, the international community would do well to invest more vigorously in assisting post-conflict societies themselves to develop the capacity to pursue their own forms of in-country transitional justice.

Dr Du Toit is Executive Director of the Institute for Justice and Reconciliation.

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