Chance to make amends with the ICC now exists

The 27th Ordinary Summit of the African Union ended in Kigali, Rwanda, last week, without what has become a customary attack on the International Criminal Court.

This is the first time since 2013 that an AU summit has ended without a major attack on the court. It is also the first summit of the AU that has taken place after both Kenyan cases before the ICC were withdrawn.

The first Kenyan case, the one against President Uhuru Kenyatta, was withdrawn at the beginning of 2015, after the prosecutor informed the court that she had failed to find the evidence that would link the President to the crimes that had been committed during the post-election violence, over which he was charged.

The case against Deputy President William Ruto and his co-accused Joshua Sang lingered on after the termination of the Kenyatta case and was only terminated in April.

As long as the two cases went on, the African Union had maintained an extremely hostile rhetoric against the ICC, and as part of this, during the January Summit, the AU gave its Open-Ended Committee of African Ministers on the ICC a mandate to develop a “comprehensive strategy” on the ICC, including considering the withdrawal of African member countries from the court.

It is the activities of this committee that triggered fears that the Kigali Summit, where it was to report, could provide the occasion for a decision on a mass walkout from the ICC.

The available text of the decisions of the Executive Council of Ministers, to which the open-ended committee reported, contained no reference to the possibility of withdrawing from the ICC.

In Kigali, unlike in the past when Botswana was often the lone voice supporting the court within the AU, a few more countries openly opposed any discussion about the possibility of a mass withdrawal.

ARREST AMD PROSECUTION

Nigeria, Senegal, whose Justice Minister Sidiki Kaba is the current president of the Assembly of State Parties, Ivory Coast, Tunisia and even Algeria, which is not a member state of the ICC, opposed any decision to pull out of the ICC. If these countries had previously opposed the agitation for a walkout on the ICC, they had not provided audible evidence of this fact until last week.

It is possible to conclude that the hostility that the AU has harboured towards the ICC was not unconnected with the Kenyan cases that were then before the court. Kenyan cases properly entered the court in 2010, joining the case against President Bashir of Sudan, which had started the previous year.

Whereas Bashir had a measure of support within the AU towards the non-cooperation of its member states in his possible arrest and prosecution, the Kenyan cases significantly strengthened what was then a tentative AU position on non-cooperation where the prosecution of a head of state was involved.

During the Extraordinary AU Summit in October 2013, the one where the newly-elected President Kenyatta made the unforgettable speech in which he likened the ICC to a pantomime, the AU resolved that “no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.”

Before this resolution, the comparable AU resolutions had been exhortations to member states not to cooperate in the arrest and surrender of Bashir.

During the 21st Summit in May, the first one Kenyatta attended as President, the AU had only resolved that the ICC be referred back to Kenya.

The difference in October was that for the first time the AU was passing a plenary rule that purported to cover not only Bashir and Kenya but also all future cases that involved presidents.

The Malabo Protocol adopted the following June, reinforced the AU position when it approved the creation of a new African Court that would have a criminal jurisdiction.

The treaty establishing the court provided, in similar terms, for immunity before the court for serving heads of state and government, and to other senior officials based on their function.

As a result, and despite the horror with which this has been met by the international community, Africa has moved significantly in the path of creating a new norm that exempts heads of state and senior officials from prosecution for crimes for which they would otherwise not enjoy immunity under international law.

In Kigali, the relatively calm approach to addressing the troubled AU/ICC relationship had to do with the fact that with the Kenyan cases now ended, there was no more pressure to show Kenya loyalty even when this was unreasoned. There is hope that a more restrained context in which the relationship can be discussed is now possible.

Kigali, however, shows that the previous melodrama by the AU against the ICC had little to do with principle and was only ultimately about saving Kenyatta and Ruto from the threat of trial.

Since this has been achieved and given the long-term damage that has been occasioned to the ICC while doing so, it is time for a constructive dialogue aimed at ameliorating what has gone wrong.

Part of what has gone wrong is the fact that the fight against the ICC has given President Bashir, an ICC fugitive and a virtual pariah before the Kenyan cases started, the space to re-legitimise himself in diplomatic terms and he has now recovered significant amounts of the acceptability he had lost as a result of the case against him before the court.

While mistakes have been made in the AU/ICC relationship, a chance for dialogue and to make amends now exists.

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