XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

an immediate and joint mass withdrawal from ICC, but rather says that “further research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required.” Most of the AU Member States required more time to deliberate on this; Zambia announced a countrywide consultation process on whether or not to withdraw from the ICC; whereas Nigeria, Namibia and Senegal openly opposed the withdrawals’ idea and reaffirmed their commitment to the ICC. Liberia even entered a reservation to the paragraph that adopts the AU strategy as a whole. This could be an opportunity to improve and reform the system of the ICC fromwithin in order to better address the concerns of African countries. SouthAfrica: SouthAfrica’sNorthGautengHighCourt in Pretoria 57 ruled that the withdrawal that was expressed by the Government is unconstitutional and is therefore invalid. It requires a decision from the parliament. As of now it is unclear if the country has abandoned intentions to leave the international court, or if it was seeking another way to do so. The Gambia : the newly elected Gambian president, Adama Barrow (assumption of office in January 2017) has promised to reverse Jammeh’s decision to withdraw from the jurisdiction of the ICC and reaffirmed The Gambia’s’ commitment to the International Court. But regardless of the withdrawal from or the support of the ICC, the desire of African States to try Africans accused of genocide, war crimes or crimes against humanity before an African court remains.

in amanner that is complementary to domestic justice systems, intervening only when states are unwilling or unable to deliver justice 52 . In 5 out of 8 cases in which prosecution against individuals is ongoing, the governments themselves have requested the ICC to undertake investigations 53 . In two cases 54 , the Security Council of the UN has transferred the matter to the ICC. Only in one case 55 , the ICC itself has started investigations. The current legal framework of the ICC allows to investigate against incumbent Head of States. The majority of African countries want the meaning of immunity and amended in the Rome Statute. It seems like this provision became the catalyst for the widespread ICC criticism related to these two cases: Sudanese president Omar al-Bashir has been wanted by the court since 2009 for allegedly orchestrating atrocities in Darfur. The ICC also caused an uproar among some African nations by indicting Kenyan president Kenyatta on charges of crimes against humanity for 2007 post-election violence in which more than 1,000 died. Therefore, the movement to withdraw from the ICC and hence to establish an own African jurisdiction for criminal matters – with a provision guaranteeing immunity 56 for sitting Head of Governments. Is it really an African domino effect? In fact, a more detailed look at the situation reveals that the reactions of African states are very diverse. First of all, the AU strategy paper does not call for

African Court on Human and Peoples’ Rights (AfCHPR)

International Criminal Court (ICC)

ICC prosecutes individuals for the international crimes of genocide, crimes against humanity, and war crimes against other individuals.

The Court protects Human Rights by delivering judgments against States who violate citizens Human Rights

Mission

Members

30 (out of 55) Members States of the AU

124 States worldwide (34 African States)

African Charter on Human and Peoples’ Rights;

Protocol on the Establishment of an African Court on Human and Peoples’ Rights

Legal base

Rome Statute

Active since

2006

2003

Tanzania was found guilty of violating its citizens’ rights to freely participate in government elections regardless of their party affiliation. Tanzania was ordered to take constitutional and legislative measures necessary to remedy these violations.

Congolese rebel leader Thomas Lubanga Dyilo was found guilty of war crimes related to using child soldiers. He was sentenced to prison for 14 years.

Example judgement

Organ of

African Union

United Nations

23 cases before the Court 29 arrest warrants 6 verdicts: 9 individuals have been found guilty, 1 has been acquitted

124 applications of alleged Human Rights violations 32 finalized cases 92 pending cases

Numbers

Seat

Arusha, Tanzania

The Hague, Netherlands

52 Preamble & Article 1 of the Rome Statute establishing the ICC. 53 Uganda called in the ICC to investigate the Lord’s Resistance Army (LRA); Central African Republic called to investigate allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces (Jean-Pierre Bemba, Movement for the Liberation of Congo); Democratic Republic of Congo called to investigate the crimes during the Second Congo War and its aftermath, including the Ituri and Kivu conflicts; Ivory Coast called to investigate the crimes that left 3000 people dead in the aftermath of the country’s disputed 2010 presidential election; Mali called to investigate war crimes during the Northern Mali conflict since January 2012. 54 Sudan: investigation into criminal acts committed during the War in Darfur; Libya: investigation into the brutal suppression of the 2011 Libyan civil war. 55 Kenya: investigation into the responsibility for the 2007–2008 post-election violence. 56 Article 46 A bis of the Malabo Protocol: “No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such a capacity, or other senior state officials based on their functions, during their tenure in office.” 57 http://www.saflii.org/za/cases/ZAGPPHC/2017/53.html PDF of the decision available.

Budget in 2016

$10.2 million

€139.5 million

18 judges Office of the prosecutor: Ms Fatou Bensouda (Prosecutor), Mr James Stewart (Deputy Prosecutor), 380 staff members

Composition

11 judges, headed by Judge Sylvain Oré (President of the Court)

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