The quest for international criminal justice in Africa has been riddled with challenges. Central to these is the continued conflict relating to the International Criminal Court (ICC) in Africa due to, among other issues, the differences in how the Rome Statute of the ICC is interpreted and applied.
Kenya and South Africa expressed serious concerns at the annual meeting of ICC members in 2015 when their delegations queried the court’s approach to immunity for heads of state and the handling of prior recorded testimony by the prosecution. Soon after, at the African Union (AU) summit in January this year, it was reported that a proposal by Kenya to develop a roadmap for withdrawal from the Rome Statute, should the ICC not be reformed, was adopted.
Regional and domestic efforts have shown some success, but to work, international criminal justice must be untangled from the political barriers that prevent accountability. Constructive dialogue between African states, the AU, the ICC and the global community is needed now more than ever.
This seminar was an important platform for the AU and other institutions to discuss how international criminal justice can thrive in Africa. Speakers reviewed recent developments and innovative approaches in the quest of making the case that all hope is not lost for Africa’s victims.
Berouk Mesfin, Senior Researcher, Conflict Prevention and Risk Analysis Division, Institute for Security Studies (ISS) welcomed participants on behalf of Ambassador Alfred Dube, Office Director, ISS Addis Ababa. The meeting was chaired by Allan Ngari, Researcher, Transnational Threats and International Crime Division, ISS. Speakers were:
- Baba Guisse, Counsellor, Adviser to the President of the Assembly of States Parties to the ICC
- Prof Vincent Nmehielle, Legal Counsel and Director for Legal Affairs, AU Commission
- Dr Salah Hammad, Senior Human Rights Expert, Department of Political Affairs, AU
- Gladwell Otieno, Executive Director, Africa Centre for Open Governance
- Eric-Aimé Semien, President, Ivorian Observatory for Human Rights
Baba Guissé, speaking on behalf of the President of the Assembly of States Parties to the ICC, discussed the relationship between the ICC, African states and the AU and the danger of the ‘us’ versus ‘them’ argument for international criminal justice in Africa.
Echoing this point, Prof Vincent Nmehielle said that the AU is not against the ICC and that engagement remains active between these two entities, including the annual ICC/AU meeting. Speakers agreed that the concerns of the AU and its member states must urgently be addressed, including a meeting between the Open-Ended Committee of African Ministers on the ICC and the United Nations Security Council. However, Nmehielle argued that the UNSC has complicated the role of the ICC and tarnished its operations. In addition, the amendment to Article 27 of the Rome Statute is unlikely to be accepted by other groups of states parties outside the African continent.
A key issue for speakers and participants was the question of immunity for heads of state remaining unresolved in international law. The practicalities of arresting a sitting head of state, for example the case of Omar al-Bashir, remains difficult. However, African states and the AU are making progress on promoting international criminal justice on the continent. For example, through the Extraordinary African Chambers in the Senegalese Courts trying former Chadian President Hissène Habré and the AU Hybrid Court for South Sudan.
The Office of the Legal Counsel is engaging AU member states and partners on the Protocol to the African Charter on Human and Peoples’ Rights, which expands the jurisdiction of the African Court of Justice and Human and Peoples Rights to include international crimes. Nmehielle also urged civil society to keep engaging with the AU and regional international criminal justices processes on the continent.
Dr Salah Hammad discussed the complementarity principle of the Rome Statute. He questioned the support that the ICC is giving national criminal justice systems to address international crime in Africa. Hammad also spoke about the African Transitional Justice Policy Framework providing a holistic and complementary approach to addressing the legacy of conflict on the continent. Importantly, he emphasised on the need for Africans to take responsibility of ending impunity.
A civil society perspective on international criminal justice, most notably the role of the Kenyans for Peace with Truth and Justice was provided by Gladwell Otieno. She deplored government attacks on civil society where accountability is demanded for the victims of international crimes. Otieno also stressed the importance of addressing inadequate legal frameworks and policies and the needs of victims in Africa. She concluded that governments should continue to open space for engaging with civil society.
Eric-Aimé Semien spoke extensively about the challenges of the ICC prosecutions in Côte d’Ivoire, which focused on one side of the conflict emanating from post-election violence in 2010 and 2011. Semien raised the importance of the Economic Community of West African States Community Court of Justice as an avenue for individual and groups of victims to access the court for remedies against state violations of human rights.
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