The International Criminal Court - Case Study Example

THE AFRICAN UNION AND ITS MOVE TOWARDS DEVELOPING AN AFRICAN CRIMINAL COURT Name Course Instructor Institution Date Introduction The end of the Second World War saw the establishment of several international bodies designed to deal with atrocities committed by the main propagators of the war. The Tokyo War Crimes Tribunal and the International Military Tribunal were the first bodies developed to prosecute powerful individuals accused of promoting war crimes. These two tribunals acted as the main building blocks of the International Criminal Court. The signing of the Rome Statute by the majority of the UN member countries resulted in the ICC becoming a permanent body with jurisdiction in all the states who signed. However, recent years have seen African nations, the majority of whom are signatories to the Rome Statute; opt for the formation of an African Criminal Court, which would take on the responsibility of prosecuting Africans, who have committed war crimes such as genocide, displacement of mass populations among others. The establishment of the African Criminal Court has, however, faced numerous challenges in regards to international legal frameworks including the Rome Statute. This paper provides a case study of the African Union’s move towards developing an African Criminal Court, with specific emphasis on the context of establishment of the court, the main sectors in the establishment of the court as well as the current situation concerning the formation of the African Criminal Court. Context The decision by African nations to develop a criminal court for the prosecution of Africans who have committed crimes against humanity is a result of various issues including historical injustices, international political issues, as well as normative frameworks. One of the major issues resulting in the African Union decision to create an African criminal court includes cases of historical injustices against African nations in the ICC. Plessis, et al. (2013) explained selective prosecution as one of the major reasons for the development of an African Criminal Court. Since its establishment, the ICC has mainly prosecuted and investigated crimes committed in African countries. The UN Security Council has the right to refer crimes against humanity to the ICC, which has resulted in the council referring Sudan and Libya (Kersten, 2015). The Security Council has however failed to refer cases from countries outside Africa, including Syria and Israel, which is viewed as selective prosecution against African states. Another issue resulting in the African Union decision to establish a court to deal with war crimes and crimes against humanity is the issue of universal jurisdiction by European countries. Universal jurisdiction of European countries came into the limelight in 2008, when Germany arrested a Rwandese state official, in pursuant to a warrant issued by the French government (Plessis, et al., 2013, p. 3). The African States faulted several European governments for abusing the universal jurisdiction doctrine. As a way rebelling against this abuse by European countries, the African Union member states have been urged not to comply with arrest warrants issued by European courts against African personalities. The African Union’s decision to develop a criminal court to prosecute Africans accused of committing crimes against humanity is also due to the response to imperialism. Tladi (2009) explained that African States view the ICC as a Western Emperor body that employs its power over less developed nations. From an imperialist lens, African nations view ICC as a tool employed by Western nations to demean past victims of colonization. A major reason behind the ICC being viewed as a tool meant to demean past colonies is the recent issuance arrest warrants against Sudan’s head of state, as well as the prosecution of high-level government officials including the Kenyan president and deputy president (South African History Online, 2015). This disrespect of state immunity has resulted in more African nations opting for the development of an African criminal court. Other than disregard for state immunity, the issuance of arrest warrants and prosecutions of high government has resulted in the ICC being viewed as an impediment to the reconciliation and peace process in Sudan (Plessis, et al., 2013, p. 4). An international legal framework influencing the development of the African criminal court is the Rome Statute. Recent years have seen African countries defy the Rome Statute by not arresting Omar Al-Bashir, who has visited various countries including Kenya and South Africa, both which are signatories to the statute. Despite being on the front row in the drafting of the Rome Statute, African nations have received criticism for not implementing the statute (Murungu, 2011, p. 1073). The establishment of an African Criminal Court will result in states who are signatories to the Rome Statute breaching their commitments to the treaty. Major Actors The African Union established a court to deal with issues of human rights violation in 1998, with the court beginning its activities in 2004. The African Court on Human and Peoples' Rights (ACHPR) however did not have jurisdiction to deal with war crime and crimes against humanity, which resulted in reliance on the ICC (Plessis, 2012, p. 2). However, the recent negative relationship between the AU and the ICC has seen the need for African nations to expand the jurisdiction of the ACHPR to cover cases involving crimes against humanity as well as war crimes. The decision to expand the ACHPR jurisdiction was driven by various states in Africa, with East African nations being on the main promoters of the decision to develop a criminal wing in the ACHPR (Fortin, 2013). The first country to propose the formation of an African Criminal Court was Sudan after the UN Security Council referred several leaders including the president for war crimes committed in the Darfur crisis. After Sudan’s calls for the establishment of a criminal court, other countries, who are not signatories to the Rome Statute backed Sudan’s opinion, with Ethiopia being a major proponent of the decision to develop an African Criminal Court. Ethiopia’s support for the establishment of an African Criminal Court was noted by the country’s reluctance to arrest the Sudanese president in his visits to the country. (Plessis, 2012, p. 3). The issue of establishment of an African Criminal Court, however, dd not receive much attention until 2009, when the African Union held a summit meant to consult on the possibility and implications of expanding the African Court power to try cases labeled as international crimes. Kenya is also another major actor that promoted calls to establish an African Criminal Court. Other than the arrest warrant issued by the Sudanese government, the year 2009 saw the ICC issue summons against six Kenyans alleged to have instigated post-election violence after the 2008 elections. This issuance of summons and later prosecution of four of this individual helped promote the anti-ICC sentiments among African countries; therefore, need for an African Criminal Court. The development of the African Court also involved non-governmental legal organizations. The Pan African Lawyers Union, with headquarters in Nairobi Kenya, was the body chosen to draft legal documents and provide recommendations to the protocol that would establish a criminal wing in the African Criminal Court (Deya, 2012). PALU was required to conduct meetings in several African nations and present a draft statute and protocol to the African Union heads of state summit. Current State of Affairs The development of an African Criminal Court began in February 2009, with the first year requiring consultations on the implications of increasing the ACHPR jurisdiction to cover war crimes and crimes against humanity. Beginning the year 2010, a legal tribunal encompassing lawyers from different African nations held meetings in different nations with the aim of developing a draft statute and protocol for the establishment of the African Court. Over a period of two years, PALU developed various protocols and statute drafts with the final draft being presented in Addis Ababa during a justice ministers’ conference. The draft was later adopted during the Heads of State summit later in 2012 (Konrad Adenauer Stiftung, 2015). Several amendments were made to the final draft, including removal of popular uprising from the unconstitutional change of leadership crime. The year 2014 also saw African heads of state introduce a new amendment, which protected sitting heads of states from prosecution at the court (Affa'a-Mindzie, 2014). The prosecution of sitting heads of states is one of the major reasons promoting the anti-ICC campaign in African nations; therefore, granting sitting heads of states immunity would illustrate a difference from the ICC. International human right organizations and ICC proponents, however, argued that granting sitting heads of states immunity from prosecution would put African citizens at the risk of gross human rights abuses perpetrated by government agencies. The year 2014 also saw African heads of state formalize the jurisdictional expansion of the ACHPR to include crimes against humanity and war crimes (Affa'a-Mindzie, 2014). The development of the African Criminal Court faces several legal and organizational challenges. The establishment of an African criminal court may result in confusion especially on matters of the ICC and African Court jurisdiction. The ICC has jurisdiction over global crimes committed in countries who are signatories to the Rome statute. Formation of the African Criminal Court may result in jurisdictional conflict between the two courts, due to African states being members of both treaties (Holt, 2012). Other than the issue of jurisdictional conflict, both the ICC and the African criminal court also face the danger of duplication. The other challenge to the realization of the African Criminal Court is the Rome statute. Of the fifty-five African Nations, approximately two-thirds are signatories to the treaty. The establishment of an African criminal court may result in ICC member states in Africa breaching their obligations to the statute (Murungu, 2011, p. 1072). The establishment of the African Court will result in sitting heads of states having immunity while in office. This amendment to the African Criminal Court protocol contradicts the Rome Statute article, which explains that all individuals are equal despite their official capacity (International Justice Resource Center, 2014). Another challenge facing the establishment of an African Criminal Court is the issue of funding. Expanding the jurisdictions of the ACHPR may result in increased financial costs. Holt (2012) explained the average cost of conducting an ICC trial to range between $20 and $50 million. The African Union faces several financial problems due to delay or refusal of member countries to pay annual fees. The development of the court could result in draining of the available AU resources. The issue of insufficient finances may impede justice dispensation, as well as raise questions concerning future court proceedings. Prospects and Recommendations The formalization of the protocol to expand the ACHPR jurisdictions occurred in 2014. However, the African Criminal Court would not come into action until at least 15 AU member states ratify the protocol. Adoption of the court will not have any impact on the current cases facing Africans at the ICC (Deya, 2012). Unless the UN Security Council postpones or calls off the various cases against African citizens, these cases will proceed despite the establishment of an African criminal court. Other than the issue of ratification of the court, the formation of an African Criminal Court seems eminent. One of the reason behind the African Criminal Court being eminent is the recent calls for African Countries to withdraw from the ICC (Fortin, 2013). Withdrawal from the ICC could result in the need for the formation of an African Court to deal with issues of human rights violation, and war crimes. The adoption of the African Criminal Court faces several challenges. One of the challenges is that of conflicting jurisdiction with the ICC. A recommendation to assist in dealing with this challenge is increased engagement between the African Criminal Court and ICC. Increased engagement would ensure that confusion on matters of jurisdiction would be addressed. The increased engagement between African nations and the ICC would also result in increased cooperation with the African Criminal Court especially on issues of extradition. Another recommendation would be increased engagement between African states. Justice Ministers and lawyers from different African nations should work together to establish a uniform legal framework to help guide the process of the African Criminal Court. There is also need to address the issue of financing the court due to limited resources of the African Union. African governments need to devise a way to ensure justice is not hampered by the lack of finances to run trials. References Affa'a-Mindzie, M., 2014. Leaders Agree on Immunity for Themselves During Expansion of African Court. [Online] Available at: https://theglobalobservatory.org/2014/07/leaders-agree-immunity-expansion-african-court/ Deya, D., 2012. Is the African Court worth the wait. Open Society Initiative for Southern Africa. Fortin, J., 2013. The Continent Versus The Court: African Union Deliberates Withdrawal From The ICC. [Online] Available at: http://www.ibtimes.com/continent-versus-court-african-union-deliberates-withdrawal-icc-1422434 Holt, K., 2012. How Close is the African Criminal Court?. [Online] Available at: http://www.irinnews.org/analysis/2012/06/13 [Accessed 25 May 2016]. International Justice Resiource Center, 2014. African Union Approves Immunity for Government Officials in Ammendment to African Court of Justice and Human Rights' Statute. [Online] Available at: http://www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute/ Kersten, M., 2015. The Africa-ICC Relationship – More and Less than Meets the Eye (Part 2). [Online] Available at: https://justiceinconflict.org/2015/07/24/the-africa-icc-relationship-more-and-less-than-meets-the-eye-part-2/ [Accessed 20 May 2016]. Konrad Adenauer Stiftung, 2015. Pan African Lawyers Union. pp. 1-9. Murungu, C. B., 2011. Towards a Criminal Chamber in the African Court of Justice and Human Rights. International Criminal Justice, 9(5), pp. 1067-1088. Plessis, M. d., 2012. Implications of the AU decision to give the African Court jurisdiction over international crimes, s.l.: Institute for Security Studies. Plessis, M. d., Maluwa, T. & O’Reilly, A., 2013. Africa and the International Criminal Court, London: Chatham House. South African History Online, 2015. The International Criminal Court: Origins, Jurisdiction and the ‘African Bias. [Online] Available at: http://www.sahistory.org.za/article/international-criminal-court-origins-jurisdiction-and-african-bias Tladi, D., 2009. The African Union and the International Criminal Court: The battle for the soul of international law. pp. 57-69. Read More