The one good thing that happened at the summit was that the worst that many feared did not happen. As I anticipated in a piece, http://www.aljazeera.com/indepth/opinion/2013/10/unplanned-obsolescence-icc-african-union-2013109132928711722.html, the much talked-about mass withdrawal of African member states of the Rome Statute did not happen. Not even a single member country declared withdrawal from ICC.  It got even better and came as assuring when the AU Assembly chairperson Ethiopian Prime Minister Hailemariam Desalegn affirmed that ‘our goal is not and should not be a crusade against the ICC’.

This suggests a couple of things. First, the fear that the summit triggered was a little exaggerated. The outcome of the summit clearly reflected that an effort was made to delicately balance between ‘sending a firm message to ICC/UNSC’ and remain part of the Rome Statute. Second, there is no solid consensus against ICC in its entirety.  Perhaps, the size of African states who defend ICC against its total repudiation is not as insignificant as many may think.

The fact that the worst did not happen does not mean that Africa-ICC relationship is now better than it was before the extraordinary summit of 12 October 2013. While the state of Africa-ICC relationship was very bad prior to the summit (see http://www.aljazeera.com/indepth/opinion/2013/06/201369851918549.html), it did not get any better with the summit. In fact, it has now gone from bad to worse since the summit.

The outcome of the summit was a decision with a number of elements. To begin with, the member states decided to circumscribe the jurisdiction of the ICC. According to the decision of the summit (Ext/Assembly/AU/Dec.1(Oct.2013)), ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office’. In the light of this decision and more specifically, they demanded that  ‘the trials of President Uhuru Kenyatta and Deputy President William Samoei Ruto, who are the current serving leaders of the Republic of Kenya, should be suspended until they complete their terms of office’.

Additionally, the decision outlined other measures. These include to fast track the establishment of the criminal jurisdiction of the African Court on Human and Peoples’ Rights and to table for discussion to the Assembly of State Parties of the ICC amendments to the ICC including on immunity of heads of state and government.

Most notable are also the three other decisions relating to UN Security Council (UNSC) and the ongoing Kenyan cases.

First, they decided ‘to set up a Contact Group of the Executive Council to be led by the Chairperson of the Council, composed of five (5) Members (one (1) per region) to undertake consultations with the Members of the United Nations Security Council (UNSC), in particular, its five (5) Permanent Members with a view to engaging with the UNSC on all concerns of the AU on its relationship with the ICC, including the deferral of the Kenyan and the Sudan cases in order to obtain their feedback before the beginning of the trial on 12 November, 2013.’

Second, Kenya is tasked to request the UN Security Council to defer within the framework of Article 16 of the Rome Statute the trial of President Kenyata and Vice President Ruto. Accordingly, pending the decision of the UN Security Council on Kenya’s request for deferral, the AU decision accordingly envisaged for the postponement of the trial of President Kenyata and the discontinuation of Vice President Ruto’s trial.

Third, AU members further decided that ‘President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UN Security Council and the ICC’.

Implications of these decisions

The case of immunity of heads of state and government

Legally speaking, there is very little to no chance of enforcing the decision on insulating heads of state or other senior officials with such capacity from prosecution within the framework of the Rome Statute as it stands now. By virtue of Article 27 of the Statute, all African states party to the Statute have consensually accepted the jurisdiction of ICC to prosecute heads of state and government including those currently serving.

This can be reversed only through a process of amendment of the Rome Statute. As the making of the Rome Statute was not an easy exercise, its revision would not either be an easy affair. Indeed, it would be even a much tasking process. As such, in legal terms ending current cases or ensuring that a new one would not be launched by ICC is a long term ambition, if it ever happens.

In the meantime, the AU summit decision did not change the obligation of African member states of ICC under the Rome Statute. The implication of this to President Uhuru and vice President Ruto of Kenya is that they remain bound by the existing rules of the ICC which extends to the prosecution of heads of state and government.

The fact that the current rules of ICC stand despite the decision of the AU Assembly is significant. Most importantly, President Kenyata would be in breach of ICC obligations if he fails to appear before the court come 12 November 2013, the date when his trial is expected to commence.

The simple fact that Kenya, with support of the AU, requested for UNSC deferral would not be good enough to exonerate him from traveling to the Hague for the launching of his trial. Should he opt for not showing up, ICC may find itself in the unenviable position of issuing an arrest warrant against him. Without a doubt, the issuance of an arrest warrant against him in the context of AU’s new decision would certainly take the exiting acrimony between AU and ICC to yet another level.

The case of UNSC deferral

Short of the revision of the Rome Statute, the only other path left at least as far as the Kenyan and Sudan cases is UN Security Council deferral under Article 16. Indeed, this option is the one that is sure to witness a great deal of shuttle diplomacy with Kenya and the Contact Group of the Executive Council traveling to New York and engaging UNSC members particularly the P5.

This diplomatic campaign has begun in earnest. First, Kenya has sent the request for deferral to the UN Security Council. Second, regional consultations are under way to put together the Contact Group of the Executive Council. Third, Kenya has begun engaging P5 countries of the UNSC. In fact, Kenya’s Foreign Affairs Minister has traveled (http://www.nation.co.ke/news/politics/Amina-sets-out-to-woo-the-UN/-/1064/2035668/-/h8xh8q/-/index.html) to Prague to lobby delegates of the P5 countries of the UNSC. Once the Contact Group of the AU Executive Council is in place, which needs to happen fast to beat the 12 November deadline, the members would also undertake a visit to New York to engage the UNSC.

UNSC deferral of these cases would be very hard to come, if it ever will. First, the request for deferral seems to be framed until the end of the term of the officials. Under Article 16, UNSC can defer and hence effect the suspension only for a renewable period of 12 months.

Second, the UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Kenyatta and Ruto, there is little evidence to suggest that their trial would lead to such a threat – unless UNSC members determine that the threat of terrorism facing Kenya (following the Westgate attacks) is reason enough to warrant the deferral.

Third, First, UNSC deferral under Article 16 of the Rome Statute does not end the cases. It only leads to the suspension of an ongoing investigation or prosecution. In this context, one consideration of particular importance is the implication of such suspension loss of the evidence on which the ICC Prosecutor may rely on.

There is no guarantee that the options being pursued would yield the outcome that the AU expected. One may even dare say that due application of the applicable legal rules seem to suggest that there is slim chance of the outcome AU expects from the options it outlined would materialize.

The implication of this is that not only that Africa-ICC relationship is today worse than before the summit but also there is serious possibility that it would even get much worse. If their request formulated as such is not met, AU members indicated that they would convene another extraordinary summit in November. It is anticipated that AU member states, particularly those with strong sentiment against ICC, would escalate their measures which may at that point include withdrawal, albeit even then it would not be mass withdrawal.

The crises in Africa-ICC relationship is far from over. Sadly, the worst may have yet to come.

This is of course unless it is saved by the decision of the appeals chamber of the ICC upholding the decision of the trial chamber relieving President Uhuru and his deputy Ruto from attending all the sessions of their trials.

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