Today the weakness of the International Criminal Court was underlined as Sudanese President al-Bashir, who has been subject two International Criminal Court (ICC) arrest warrants, was free to jet off to China on a state visit.
This visit coincides with a report by African civil society activists called ‘Observations and Recommendations on the ICC’, which calls upon African ICC members to fulfil its obligations to the court. The report has been timed to coincide with the upcoming African Union (AU) summit meeting.
The 17th AU summit will hold its assembly of heads of state from June 30 to July 1 in Malabo, Equatorial Guinea. Amongst the objectives of the AU's leading institutions is a commitment to promoting democratic institutions, good governance, and human rights. African states played an essential role in the formation of the ICC, and almost two thirds of African states have ratified the Rome Statute, under which it is established.
However the last few years have seen tensions arise between the AU and ICC. The initial response of the AU and its members to the issuance of Sudanese President Omar al-Bashir’s arrest warrant for war crimes and crimes against humanity provides a disquieting example. In ratifying the Rome Statute, African ICC state parties assume obligations that require them to cooperate with the court, including arrest and surrender of suspects. Despite this, several African ICC members chose to ignore the warrant and some actively invited Bashir to visit their countries. The AU itself sought suspension of the proceedings against Bashir from the UN Security Council and stated that they would not co-operate in with the ICC in his arrest. It is a welcoming recommendation therefore that this report calls for African ICC members to uphold their obligations vis-à-vis visits by persons subject to ICC arrest warrants.
The report also calls for African ICC members to press for justice for serious crimes in violation of international law in Kenya. This has been the cause of further erosion in the relationship between the AU and ICC, following the AU’s request for the Security Council to delay ICC investigation of post-election violence in Kenya. This request ran contrary to opinion polls which suggest that not only are most Kenyans in support of the ICC process, but they believe it to be the only way justice can be done for the victims of these atrocities.
AU officials have recently gone as far as to suggest that the ICC is targeting Africans. Whilst it may be true that all situations under ICC investigation to date are in Africa, this can be seen to reflect Africa’s commitment to justice for the most serious crimes. It must also be remembered that the majority of the ICC's investigations have come about as a result of referrals by the governments of states where the crimes were committed. As Stephen Tumwesigye of Human Rights Network Uganda, one of the NGO’s supporting the report, states ‘African states should urge the AU to increase - not scale down - support for holding the worst rights abusers to account.’
The AU and ICC must connect better across the physical and political borders of its members, and act in solidarity to fulfill the human rights commitment they have made to Africans across the continent. It is hoped that heads of state will note this report at this week’s AU summit and adopt its recommendations.