African Union: ICC non-cooperation drive thwarted, but African States should do more to uphold the rights of African victims

The Extraordinary African Union (AU) Summit concluded today in Addis Ababa, Ethiopia, thwarting an attempt by Kenya and other States to have African Heads of State adopt a resolution calling for non-cooperation with the International Criminal Court (ICC), or even calling for the withdrawal by African States from the ICC.
 
The trial of Kenyan President Uhuru Kenyatta for crimes against humanity for his role in the post-election violence in 2007 and 2008 is due to start in The Hague on 12 November; the trial of Deputy President William Ruto has already started last month.  While both accused have complied with all court summons until now, as the evidence against them is likely to build up during trial, there is a concern that they may stop cooperating. An African Union non‑cooperation resolution could have provided some political cover for Kenya failing in its international legal obligations as an ICC State Party.
 
“The decision adopted by the African Union Summit falls short of proposing or endorsing non‑cooperation or withdrawal, but still raises numerous troubling issues,” – states Alison Smith, Legal Counsel of No Peace Without Justice – “In its references to Head of State immunity, the AU Decision seems to forget that it is well-established in customary international law, as reaffirmed in the Rome ICC Statute, that there is no immunity when it comes to war crimes, crimes against humanity and genocide.
 
“It is simply unacceptable to place an entire category of people outside the remit of justice, including sitting Heads of State and Government, or persons acting in that capacity, even if it is limited to their time in office. Instead of “respecting” the law, it encourages criminals to hold onto power at all costs and denies victims their right to justice and to redress.
 
“Nevertheless, No Peace Without Justice (NPWJ) and the Nonviolent Radical Party, Transnational and Transparty (NRPTT) welcome the African Union’s recognition that it does not have the right to exert political pressure on ICC judicial proceedings. Article 16 of the Rome ICC Statute makes it very clear that it is not for the ICC Prosecutor, Chambers or Registrar to make decisions based on, or even taking into consideration, political issues, but that the proper venue for these claims is the UN Security Council and the ICC’s Assembly of States Parties.
 
“We call on the UN Security Council and the ICC Assembly of States Parties to heed today’s request to hold these discussion and urge them to do what the African Union has not done, which is to allow the participation of victims from Africa and the world, to ensure their voices are heard on whether it is justice or whether it is impunity which threatens peace and security.”
 
For further information, contact: Greta Barbone on gbarbone@npwj.org or +32-486-533-920 – or Nicola Giovannini on ngiovannini@npwj.org or +32-2-548-3915.