Immunity of Heads of State and Government for International Crimes ? The African Union must act with coherence and political courage

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Op-ed written by Karim Lahidji, FIDH President, and all FIDH African International Bureau members, Souhayr Belhassen, Sheila Muwanga Nabachwa, Dismas Kitenge Senga, Drissa Traoré, Paul Nsapu, Alice Mogwe, Mabassa Fall

15 and 16 May 2014 saw African Union (AU) Ministers of Justice meet in Addis Ababa, Ethiopia, to work on the proposed expansion of the jurisdiction of the African Court of Justice and Human Rights to include criminal matters. The AU has been working on this reform for several years. Its aim: to enable the African Court to try those responsible for grave crimes, especially war crimes, crimes against humanity and genocide. May’s meeting culminated in a ministerial recommendation that Article 46A bis of the extension plan be amended to incorporate a clause exempting from prosecution any serving AU Head of State and Government, or anybody acting or entitled to act in such capacity or other senior state officials based on their functions, during their tenure of office. With this recommendation, these Ministers have just endorsed immunity of function for precisely those individuals with the greatest responsibility for the gravest crimes.



Lack of consistency and political courage



If adopted, such a clause would exhibit a lack of consistency and political courage on the part of AU member states. It would violate the Constitutive Act of the African Union, which makes it mandatory to condemn and reject impunity (article 4.0); the commitments made by the AU Peace and Security Council to render justice to victims of international crimes ; the Resolutions of the African Commission on Human and Peoples’ Rights (ACHPR) on the fight against impunity in Africa; the Rome Statute of the ICC, ratified by 34 of the 54 AU member states and all the Statutes of international criminal tribunals ; article 143(4) of the Kenyan Constitution, which states the immunity of the President shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity. More generally, this proposal would violate the international customary and conventional law obligations of the States Parties to this new instrument regarding the repression of crimes falling under international criminal law.



At a time when impunity has cleared a path for the resurgence of ever-more lethal conflicts in Sudan, the Central African Republic (CAR), the Democratic Republic of Congo (DRC) and South Sudan, the adoption of such an amendment would write a blank check to the perpetrators and responsible for horrendous crimes, whether they hold a position in government or not. It displays a pitiful lack of political courage and signals a disregard for the victims and citizens of Africa. Where does the idea that Africans and their leaders should be prosecuted in Africa come from ?



Still time to change this picture ?



The AU can still change this picture. AU Heads of State and Government, who will be holding their 23rd Ordinary Summit from 20 to 27 June 2014, can and should individually recognise their commitments to make justice prevail for the millions of victims of crimes committed on the African continent. They can and should refuse to validate this amendment, which is not in the interest of Africa and its populations. The AU can and should seize present discussions as an opportunity to develop a global strategy to fight impunity for international crimes and eradicate the political crises and conflicts that are affecting our continent. Such a strategy must, of need, include support for the prosecution of perpetrators and responsible of crimes before national, regional and, if appropriate, international courts, as well as support for the International Criminal Court, and for effective processes of transitional justice. The principle of equality before the law must likewise be respected.



The AU should provide political, technical, material and financial support to those member states engaged in the prosecution of perpetrators and responsible for international crimes before their own courts. In CAR, where violence against civilians continues and the justice system has disintegrated, the AU should support the Special Investigation and Information Unit (Cellule spéciale d’enquête et d’investigation – CSEI) established by a presidential decree dated 9 April 2014, to prosecute the perpetrators of international crimes carried out since the beginning of the conflict, including the leaders of the armed groups still fighting. The AU should, at the same time, support the request made by the CAR authorities to the Office of the Prosecutor of the ICC calling for an investigation of the crimes committed since 1 August 2012.



The AU is also required to play a role in Ivory Coast, where the national judiciary has made some progress though victims of the 2010/2011 post-electoral violence still wait to hear the truth about the circumstances of this violence and to see those responsible brought before impartial, well-balanced national courts. The AU should support the Ivory Coast’s CSEI and ensure that it can make concrete decisions. There are also expectations of AU support in the DRC, where it should support the prosecution of perpetrators of international crimes, reparations for victims and, especially, the adoption of a draft law on the creation of special mixed chambers. Victims and citizens also need and expect the AU’s support in Guinea-Conakry, regarding the 28 September 2009 massacre; in Kenya, regarding the 2007/2008 post-electoral violence; and in Sudan because of the conflicts in progress in South Kordofan, the Blue Nile and Darfur. The AU should also ensure that the efforts undertaken in Libya against the Qaddafi regime officials meet not only the right of victims to justice and reparation but also comply fully with international standards on the right to fair trial. These imperatives of justice and the fight against impunity challenged by a paralyzed justice in particular because of the security situation must also be extended to all those responsible for the most serious crimes committed under Qaddafi not only during the 2011 events but since the fall of the Qaddafi regime by the various actors responsible for such crimes.



The AU global strategy to fight impunity must also include support for the introduction of effective transitional justice processes. This is especially crucial for Burundi if the initiatives taken along these lines since the 2000 Arusha Agreement are not to remain hollow, and for Mali, where such a process should contribute to national efforts to restore and maintain peace.



It is incumbent on the AU to act as a conveyer for the essential tenets of justice in relations with the ICC. The AU should take up the torch wherever violence over-arches respect for the rule of law, or victims’ rights to truth, justice and reparation; it should be the torch bearer everywhere victims are forced to rub shoulders with their torturers. For this to happen, the AU must work on strengthening the universality of the Rome Statute. It must also strengthen its contacts with the ICC, for example, by facilitating the establishment of an ICC liaison office in Addis Ababa.



At its 23rd Summit the AU still can and should change its stance to ensure justice for all. It should not confirm allegations that it is merely a ‘trade union of dictators’. The millions of victims of international crime on the African continent require and deserve greater respect. The fight against impunity, the fate and interests of victims of mass atrocities must be the main objective of the proposed reforms.

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