African presidents attending last week’s African Union Summit in South Africa avoided the temptation to lampoon the International Criminal Court, the first time they have not done so in a recent gathering of presidents.
However, the summit still landed a major body-blow against the court, when Sudanese President Omar el Bashir was given safe passage contrary to the orders of a domestic court.
As has become the case whenever he travels for meetings abroad, Bashir’s brief presence in South Africa has overshadowed whatever else happened at the summit, and left a major controversy in its wake.
By hosting Bashir, against whom the ICC has issued two arrest warrants, South Africa, previously a leading supporter of the ICC within the African continent, has now strongly repudiated the court.
Also, Bashir’s visit has left South Africa’s domestic institutions in turmoil, as the country’s judiciary is likely to view the failure to comply with orders for his arrest as an attack on the country’s rule of law.
Last week’s events are seen as further evidence of the decline in South Africa’s global moral leadership position and as a despoliation of the country’s own proud legacy of struggle against apartheid.
Although not on the agenda notified ahead of the meeting, Kenya managed to push into the business of the summit a discussion on the case against Deputy President William Ruto.
The AU reportedly resolved to intervene in the application currently before the court on statements obtained from witnesses who have since refused to testify for the prosecution should be handled.
The trial chamber in the Ruto case has already rejected an application by the Kenyan government to participate in the proceedings regarding the interpretation of rule 68 of the Rules of Evidence and Procedure, a rule which came into force in 2013, after the Kenyan cases were already under way. Kenya claims the rule should not apply retrospectively.
However, Kenya has no problem with the retrospective application of another rule passed alongside rule 68, and which enables Ruto to stay away from court when his own trial is running.
Legally, Kenya is not a party to the case, whose only parties are William Ruto and Joshua Sang, as the accused persons, the prosecutor as their accuser, and a small number of pre-approved victims of the crimes committed.
Between them, these victims are represented by a common lawyer. Thus, Kenya sought to become a party only in relation to arguments on the interpretation of rule 68 but was denied.
Kenya has tried another pressure point, writing a letter in late May, through the UN mission in New York, to the Chair of the Assembly of State Parties, Sidiki Kaba.
The letter protested the interpretation that the ICC prosecutor had assigned to rule 68 and requested Kaba to ensure that the sanctity of the process reached in the Assembly (that there would be no retrospective application of the amendments) was respected.
In 2013 Burundi, Eritrea, Tanzania, Rwanda and Uganda applied to join the Ruto case during an application on whether the Deputy President should be excused from attending court during the hearing trial.
The trial chamber, however, denied them participation.
Similarly, if the AU seeks to become a party to the proceedings in the Ruto case, it is possible that its application will also be rejected. If that happens, the AU can use it as a trigger for a mass walkout from membership of the court.
The statements from the ANC justify the view that South Africa is now seriously considering pulling out of the Rome Statute. While this will be a further blow to the ICC, a mass African pullout from the ICC looks unlikely for now. Whatever its flaws, the ICC has become integral in conflict management on the African continent.
As demonstrated by the stalemate in the crises in South Sudan, Central African Republic and Burundi, Africa is still short on credible alternative mechanisms for the management of conflict on its soil.
It is noteworthy that the summit failed to make a meaningful pronouncement on the ongoing conflicts, Mugabe merely calling for a speedy formation of the African Standby Force, whose establishment has been under process for more than a decade.
Thus, despite a record of severe attacks of the ICC, Uganda still referred Dominic Ong’wen to the court when he turned himself in in Central African Republic last year.
To manage their internal conflicts, Mali, the Central Africa Republic and Cote d’Ivoire have all been compelled to invite the ICC into their territories and the court is currently dealing with cases from these countries.
One of the difficulties facing efforts to resolve the South Sudan conflict is the lack of credible mechanisms to address the horrific crimes that have been committed in the one-and-half-year-old conflict.
South Sudan is not a member of the ICC, which means that there is no automatic right for the prosecutor to intervene. At the same time, typical of a newly-established state, South Sudan’s domestic institutions are fragile and cannot assume responsibility for accountability.
If the relationship between the AU and the ICC was not so bad, the lack of alternatives might have led South Sudan to invite the International Criminal Court into its jurisdiction.
While big states like South Africa can possibly walk out of the International Criminal Court, and may choose to do so, the AU institutionally, and the small African states individually, need the court since they lack alternatives to address the ongoing conflicts.
A realisation of this fact will bring much-needed humility in the way the AU handles relations with the ICC.