WHEN our own Nkosazana Dlamini Zuma was sworn in to head the AU this week, continental politics became distinctly more interesting.
Many South Africans haven’t been very aware of the politics of international courts and justice, where she could now play a crucial role – but this is a great time to catch up so as to follow developments in the future.
Apart from Dlamini Zuma, there’s another new key player, the chief prosecutor for the International Criminal Court at The Hague, Fatou Bensouda. At one time the minister of justice in Gambia, she held the post of deputy chief prosecutor of the ICC before taking over as head of that office in June.
Like Dlamini Zuma she takes up her new job at a difficult time – the ICC, the court through which the world fights war crimes, genocide and crimes against humanity, is being targeted for criticism as well as support over its record.
Particularly troubling is the fact that all the ICC’s cases so far have been from this continent.
While ICC staffers try to explain this phenomenon the AU (among others) has not accepted their explanations.
One can see the AU’s resentment in two examples. After the UN security council referred the matter of Darfur, Sudan, to the ICC, the court issued an arrest warrant for President Omar al-Bashir.
The AU objected and tried unsuccessfully to have the process halted, after which an AU majority decided African states should refuse to arrest al-Bashir. Here was a direct challenge to the ICC, indicating the considerable displeasure of some AU member states.
Not that all African states have agreed to disregard the warrants: Botswana, SA and Malawi, for example, say they must honour their commitments under the Rome Statute that set up the ICC.
The second example is the AU’s determination to set up its own court to deal with the issues already under the ICC’s jurisdiction.
The proposed African Court of Justice and Human Rights would merge the existing African Court on Human and People’s Rights with a new component allowing it to investigate war crimes, genocide and crimes against humanity, among others.
This might look like a good idea, signalling AU determination to hold perpetrators to account and showing a continent so determined to root out genocide and similar crimes that it has no need for the ICC to do the job.
But it’s not that simple.
There are significant problems about the idea, brought even more sharply into focus with the appointment of Bensouda and Dlamini Zuma.
International law experts such as Max du Plessis have detailed the inherent problems for the AU in getting the new court set up.
Take finance, for example: the jurisdiction of the proposed court is so broad it will cost far more to staff and run than Africa can afford. This question has stalled the court – a recent AU meeting intended to take the project further decided first to commission intensive investigations of the budget.
Plans for a new court show just how resentful African member states have become of the ICC’s prosecution of the continent’s alleged war criminals, but one has to ask whether its establishment would achieve anything other than balm for the injured pride of leaders, while leaving genocide victims no better off.
Enter Bensouda and Dlamini Zuma. As AU head, Dlamini Zuma might look as though she has a mandate to squeeze the ICC out of involvement in prosecuting African war crimes. This is despite the fact that SA is strongly committed to its international obligations in relation to the ICC.
Bensouda, as ICC chief prosecutor, has to walk carefully. During a recent visit to SA she told me she has met the AU head whom she believes “stands for justice” relating to “what is happening on the continent and how we should take care of the victims of these crimes”.
The ICC and the AU shared some common goals, Bensouda said, including the determination that impunity (for war crimes) will not be tolerated. “I will definitely try on my part to continue this dialogue.”
On your watch list put the following, among many others: will Dlamini Zuma support the new court?
Will she back an AU policy translating continental criticism of the ICC into action – even if it means dumping states’ obligations under the Rome Statute? Will the ICC take on prosecutions outside the African continent?
We are in for a fascinating time.
l carmelrickard.posterous.com