The ICC & the AU: should African leaders be given immunity from their crimes?

The ICC & the AU: should African leaders be given immunity from their crimes?

The African Union convened a special summit on October 11th and 12th to debate the International Criminal Court’s investigations of the standing heads of state of Sudan and Kenya. Though some members asked that the AU leave the court entirely, a decision was called for the ICC to refrain from prosecuting politicians currently in office, arguing that such actions would have an “undermining” effect on the sovereignty, stability, and peace of member nations.

The current quandary has been brewing for some time. In the time since it opened its doors in July of 2002, the court has reviewed 20 cases in eight different situations that have all coincidently occurred on the African continent. This lack of diversity has given critics leverage over the ICC who now claim that the court is but a political tool for unfairly targeting Africa. Yet the breaking point for the AU was the indictment of Kenyan heads of state William Rotu and Uhuru Kenyatta for gross human rights violations during the 2007-2008 elections. Prosecutor Fatima Bensouda of her own ‘propio motu’ initiated this case, representing the first time the court’s chief has pursued a case without referral by a party state or the Security Council. In dissent of his indictment, Kenyan head of state Uhuru Kenyatta has protested that the ICC’s actions reveal that the court is but a “race-hunting toy of declining imperial powers” that are biased against Africa.

However, no less than 34 of the 54 African nations are party to the Rome Statute, meaning that they have voluntarily chosen to pursue responsibility and justice for those perpetrators of international crimes. The DRC, Mali, the Central African Republic, and Uganda have brought cases before the ICC of their own accord, demonstrating Africa’s willing involvement in court proceedings. Such events weaken claims of racial and political bias and question the validity of the AU’s decision to pursue immunity for its leaders.

The situation has multiple implications for the African Union. The multilateral organization maintains justice for heinous crimes as one of its main pillars, yet it now seeks to selectively do away with the rule of law for its most powerful members. This decision has been met with a mass of criticism worldwide, most notably from African leaders and human rights activists such as Kofi Annan and Desmond Tutu. Tutu, a Nobel Peace Prize winner and apartheid activist has denounced the AU’s activities as “a grave blow to the rule of law and the memories of the millions of people who have suffered in refugee camps of Darfur, and the villages of Congo and Ivory Coast” and asserted that “African leaders behind the move to extract the continent from the jurisdiction of the ICC are effectively seeking a license to kill, maim and oppress their people without consequences.”

The AU now waits for Security Council to consider the legitimacy of its decision. The Security Council does not have the jurisdiction to overturn the indictments completely, but it can continually stay court proceedings for periods of up to 12 months. The Council’s verdict is sure to have an impact on not only the nature of justice and the rule of law in Africa, but also on the future of the ICC itself. Having been unable to apply its doctrine to the United States, Russia, and China, it is up to the world to decide if the court is an ineffective body or a motivating force for true justice in the face of crimes against humanity. Events in the coming months will show how the court is regarded by the international community, as well as reveal if the African Union is willing to hold itself to the human rights standards it agreed upon when it became party to the Rome Statute. Until then, Rotu and Kenyatta remain untried, and those victims of Kenya’s political violence still wait for justice.