Expanding the Focus of the ‘African Criminal Court’

Authored by: Kai Ambos

The Ashgate Research Companion to International Criminal Law

Print publication date:  May  2013
Online publication date:  March  2016

Print ISBN: 9781409419181
eBook ISBN: 9781315613062
Adobe ISBN: 9781317043157

10.4324/9781315613062.ch22

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Abstract

To date, all situations where investigations have been formally opened (pursuant to Articles 15(3) and 15(4) and Article 53(1) of the ICC Statute 2 1

I thank my research assistant and doctoral student Sabine Klein for her most valuable support in preparing this chapter. I also thank Dr Phil Clark (London/Oxford) and Dr Gerhard Anders (Zurich) for helpful comments. The paper is accurate as of 18 February 2013.

2

Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998, entered into force 1 July 2002.

) which have been initiated by the ICC since its establishment in 2002 originate in the African continent (these are: Democratic Republic of Congo [DRC], Central African Republic [CAR], Uganda, Sudan, Kenya, Libya and Côte d’Ivoire) 3 3

ICC, ‘Situations and Cases’ <http://www.icc-cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Pages/situations%20and%20cases.aspx> last accessed 1 January 2013.

, and also the ICC’s first conviction as well as its first acquittal concerned African nationals 4 4

See on the one hand ICC Trial Chamber I Situation in the Democratic Republic of Congo, Prosecutor v Thomas Lubanga (Judgment) 14 March 2012 (ICC-01/04-01/06); on the other Trial Chamber II Situation in the Democratic Republic of Congo, Prosecutor v Mathieu Ngudjolo Chu (Judgment) 18 December 2012 (ICC-01/04-02/12).

. This led to criticism of the ICC as an ‘African Criminal Court’, 5 5

For a survey on the debate, see M Kimani, ‘Pursuit of Justice or Western plot? International Indictments Stir Angry Debate in Africa’ (2009) 23(3) African Renewal <http://www.un.org/africarenewal/magazine/october-2009/pursuit-justice-or-western-plot> accessed 1 January 2013 and M du Plessis, ‘The International Criminal Court that Africa Wants’ (Institute for Security Studies, Pretoria 2010) identifying six arguments of the debate starting from vi, and analysing those arguments from 13. As an example for one of many journalistic accounts, see the cover story ‘ICC vs. Africa. The Scales of Injustice’ New African (No 515, March 2012) 10 et seq <http://www.newafricanmagazine.com/issues/march-2012> last accessed 2 January 2013.

criticism which came to a head when an arrest warrant was issued against Sudan’s sitting President Omar al-Bashir. 6 6

The first warrant of arrest for war crimes and crimes against humanity was issued by ICC PTC I in Situation in Darfur, Sudan: Prosecutor v al Bashir (Warrant of Arrest for Omar Hassan Ahmad al Bashir) ICC-02/05-01/09-1 (4 March 2009). After the Appeals Chamber’s partial overturning of this decision (Situation in Darfur, Sudan: Prosecutor v al Bashir (Judgement on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad al Bashir’) ICC-02/05-01/09-OA (3 February 2010)) a second warrant of arrest including a genocide charge was issued: Situation in Darfur, Sudan: Prosecutor v al Bashir (Second Warrant of Arrest for Omar Hassan Ahmad al Bashir) ICC-02/05-01/09-95 (12 May 2010). The ICC’s investigations in Sudan do not end with those against al-Bashir, other cases are pending. So, in 2007, two arrest warrants against (former) Sudanese senior leaders were issued by ICC Pre-Trial Chamber I: Situation in Darfur, Sudan: Prosecutor v Harun and Kushayb (Warrant of Arrest for Ahmad Harun) ICC-02/05-01/07-2-Corr (27 April 2007); Situation in Darfur, Sudan: Prosecutor v Harun and Kushayb (Warrant of Arrest for Ali Kushayb) ICC-02/05-01/07-3-Corr (27 April 2007). In 2012, a further warrant of arrest against the current Minister of National Defence were issued by ICC Pre-Trial Chamber I Situation in Darfur, Sudan: Prosecutor v Hussein (Warrant of Arrest for Abdel Raheem Muhammad Hussein) ICC-02/05-01/12-2 (1 March 2012). At the time of writing all accused remained at large. Furthermore, in Situation in Darfur, Sudan: Prosecutor v Banda and Jerbo (Decision on the Confirmation of Charges) ICC-02/05-03/09-121-Corr-Red (7 March 2011) war crimes charges have been confirmed. In this case, both accused appeared voluntary before the Court and are awaiting trial.

Although the African Union (hereinafter, ‘AU’) promoted the ICC unreservedly some years ago, calling, for example, for universal ratification of the Rome Statute in its strategic plan for 2004–7, 7 7

AU, ‘Strategic Plan of the Commission of the African Union, Volume 3: 2004-2007 Plan of Action’ (May 2004) 65.

its attitude changed considerably with the issuance of the al-Bashir arrest warrant. 8 8

Reuters reported having been told by an African diplomat: ‘Bashir is dividing us’ and ‘Those two parts caused a big fight between the delegates’. B Malone, ‘African Nations divided over Bashir Genocide Charge’ Reuters (Kampala 25 July 2010) <http://uk.reuters.com/article/2010/07/25/uk-africa-bashir-idUKTRE66O1NR20100725> accessed 2 January 2013. See recently K Mills, ‘“Bashir is dividing us”: Africa and the International Court’ (2012) 34 Human Rights Quarterly 404-447 (identifying four areas of tension: human rights v. sovereignty; human rights v. pan-africanism; global v. regional geopolitics; peace v. justice).

The AU Assembly and its Peace and Security Council have repeatedly, albeit unsuccessfully, called upon the UN Security Council [hereinafter ‘SC’] to apply Article 16 and defer the Sudan proceedings. 9 9

See most recently AU Assembly ‘Decision on the Implementation of the Decisions on the International Criminal Court (ICC)’ (15-16 July 2012) Assembly/AU/Dec. 419 (XIX) para 4 (also including a request to defer the Kenyan proceedings); AU Assembly ‘Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC)’ (29-30 January 2012) Assembly/AU/Dec. 397 (XVIII) para 3 et seq; and as an earlier example, AU Assembly ‘Decision on the Implementation of the Decisions of the International Criminal Court’ (30–31 January 2011) Assembly/AU/Dec.334 (XVI) para 3. See for a comprehensive account D Akande et al, ‘An African Expert study on the African Union Concerns about Article 16 of the Rome Statute of the ICC’ (Institute for Security Studies, Pretoria 2010) 7–24; L Oette, ‘Peace and Justice, or Neither? The Repercussions of the Al Bashir Case for International Criminal Justice in Africa and Beyond’ (2010) 8 JICJ 345, 350; R Cryer, ‘The Security Council, Article 16 and Darfur’ in The Foundation for Law, Justice and Society in collaboration with The Centre for Socio-Legal Studies, University of Oxford (ed) Debating International Justice in Africa: Collected Essays, 2008–2010 (Foundation for Law, Justice and Society, Oxford 2010) 80–82, considering that the Security Council would be ‘lawful’, but ‘ill-advised’ to defer the situation in Sudan; CC Jalloh, ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’ (2010) 21 CLF 1, 57–58, critical of the SC’s silence.

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