2018年-查塔姆研究所_Africa_and_the_International_Criminal_Court_13页_243kb

Summary of "Africa and the International Criminal Court" (International Law 2013/01)

Core Content

This document analyzes the complex relationship between the African Union (AU) and the International Criminal Court (ICC), focusing on the reasons behind the AU's criticism of the ICC and the implications of this dynamic for international criminal justice.

The report discusses the perceived selectivity of the ICC in prosecuting cases related to Africa, despite the fact that most cases before the ICC are referred by states or the Security Council. It also explores the legal and political tensions around the principle of head-of-state immunity and the AU's attempts to establish a regional alternative to the ICC.

Main Points and Arguments

1. Selective Prosecution of African States

• ICC Focus on Africa: All current ICC investigations and prosecutions involve cases from African countries, raising concerns about the court's selectivity.
• UN Security Council Influence: The Security Council has referred cases from Libya and Darfur, but not from Israel or Syria, suggesting a possible bias.
• Political Elites vs. Victims: African political elites often criticize the ICC for perceived bias, while victims generally support the court's actions.
• Prosecutor's Role: The ICC prosecutor has the power to initiate investigations independently, and some cases (Kenya and Côte d'Ivoire) were initiated without state referrals.

2. The AU's Position on the ICC

• Historical Support: Many African states were active in supporting the ICC during its creation in the late 1990s.
• Criticism and Resolutions: The AU has adopted several critical resolutions against the ICC, particularly in response to the arrest warrant for Sudan's President Omar al-Bashir in 2009.
• Immunity Concerns: The AU believes the ICC is violating customary international law by prosecuting sitting heads of state, such as Bashir.
• Diplomatic Tensions: The AU's stance has led to diplomatic conflicts, such as South Africa's dilemma of whether to arrest Bashir during his visit.

3. The ICC and Head-of-State Immunity

• Customary Law and Rome Statute: Article 27 of the Rome Statute allows the ICC to prosecute heads of state, while Article 98 restricts cooperation with states that would violate their international obligations.
• Non-Party States: The issue of immunity becomes more complex for non-party states like Sudan, where the ICC's jurisdiction is not recognized.
• AU's Initiative: The AU has sought an advisory opinion from the International Court of Justice (ICJ) on immunity issues, though this may not succeed.

4. The Kenyan Cases

• Political Sensitivity: The cases against President Uhuru Kenyatta and Deputy President William Ruto have been highly sensitive and have galvanized the AU.
• AU Resolution: The AU passed a resolution in 2013 urging the cases to be referred back to Kenya, supported by most states except Botswana.
• Lobbying and Coordination: The Kenyan government lobbied effectively to move the issue to the AU agenda, but there was a lack of internal coordination.
• Judicial Capacity: The AU claims Kenya's judiciary is reformed, but experts disagree, noting the lack of legal mechanisms to handle such cases.

5. Witness Protection

• ICC's Challenges: The ICC faces difficulties in protecting witnesses, as it relies on local partners.
• Impact of Referral: If cases were referred back to Kenya, where witness protection is not independent, the ICC may lose critical evidence.

6. Universal Jurisdiction and Complementarity

• Complementarity Principle: The ICC can only act if domestic courts are unwilling or unable to prosecute.
• African Resistance to Universal Jurisdiction: Some African states resist the use of universal jurisdiction, fearing it may be misused.
• Domestic Justice as a Backstop: The complementarity principle allows national courts to act as a backstop for the ICC, promoting local justice systems.
• Examples of Domestic Action: South Africa and Kenya have shown potential in domestic investigations of international crimes, such as those involving Zimbabwean police and Israeli atrocities.

7. AU's Attempt to Create a Regional Court

• African Court of Justice and Human Rights: The AU has proposed expanding the jurisdiction of the African Court to include international crimes like genocide and war crimes.
• Historical Context: The idea of an African international criminal court predates the ICC, with proposals from the 1970s and 1980s.
• Current Status: The draft protocol has been considered by African legal experts, but the AU Assembly has not yet formally adopted it.

Key Information

• The AU's criticism of the ICC is not universally shared among African states.
• The ICC's authority is often challenged by African leaders due to perceived bias and immunity issues.
• The complementarity principle is central to the ICC's functioning and is seen as a way to strengthen domestic justice systems.
• The AU's attempt to create a regional court reflects a desire for greater autonomy in international criminal justice.
• Witness protection and the legitimacy of the ICC's actions are ongoing concerns in the African context.

Conclusion

The document highlights the tensions between the ICC and the AU, emphasizing the need for the ICC to be perceived as impartial and just. It also underscores the potential for African states to develop their own mechanisms for international criminal justice, which could complement the ICC's efforts. The future of the relationship between the AU and the ICC remains uncertain, but the complementarity principle and the growing role of domestic courts suggest a path toward more balanced international justice.