As South Africa witnessed vividly at first hand last week, the AU is determined that neither Sudan’s President Omar al-Bashir, nor Kenya’s President Uhuru Kenyatta, nor any sitting African president will be tried before the International Criminal Court (ICC).
Pretoria, despite being an ICC member, firmly nailed its colours to the AU mast by letting Bashir into the country and not arresting him.
So it could be revealing to see what the AU does about South Sudan’s President Salva Kiir.
Partial leaks and rumours have it that the AU’s own Commission of Inquiry led by former Nigerian president Olusegun Obasanjo into human rights violations in South Sudan’s civil war has blamed both sides for atrocities – and fingered Kiir as bearing personal responsibility.
The AU’s decision to appoint the Obasanjo commission was motivated, at least in part, to pre-empt any move by the ICC to take up the South Sudan matter. This was to be an African solution to an African problem.
But the inquiry has become something of a hot potato for the AU.
Obasanjo’s report was ready before the AU’s last summit in Addis Ababa in January and he came to Ethiopia to present it to the AU’s Peace and Security Council (AU PSC).
But the council decided he should not do so and that they would not discuss it because this could upset the delicate peace negotiations being led by Igad – the Intergovernmental Authority on Development – between Kiir and Riek Machar, his former vice-president and now his bitter enemy. It was the fallout between them that sparked the war in December 2013.
Since then the Igad peace process has broken down and the war rages on, killing many thousands and displacing many more.
The AU PSC addressed the South Sudan war at its meeting last week at the AU summit in Sandton where it established a new peace process, known as Igad-Plus, to reinforce the peace process with many more African and international countries, including South Africa.
The AU PSC also decided to convene another meeting by mid-July, to consider Obasanjo’s report, after which it would be difficult to suppress the report any longer.
The mandate of the Obasanjo Commission was to “investigate the human rights violations and other abuses committed during the armed conflict in South Sudan, and make recommendations on the best way and means to ensure accountability, reconciliation and healing among all South Sudanese communities.”
The key word here is “accountability”. If it proves to be true that the report holds Kiir personally responsible – as the ICC indictment holds Bashir personally responsible, as commander-in-chief, for atrocities committed by government troops and militias in Darfur – what will the AU do with Kiir?
Will it hold him accountable?
And, if so, how?
The African Court is in the process of acquiring the envisaged jurisdiction over the sort of grave crimes that have been committed in South Sudan, the crimes which the ICC deals with, namely war crimes, crimes against humanity and, potentially, even genocide, since the conflict rapidly took on an ethnic/tribal dimension.
But if the court does ever get jurisdiction over such crimes, the draft protocol that would give it that jurisdiction, expressly exempts sitting heads of state from prosecution.
That immunity provision, incidentally, was rapidly inserted into the draft protocol as a result of the AU’s objections to the ICC pursuing Bashir and Kenyatta.
So could we see the AU indicting lower officials from both factions, while conspicuously excluding the leaders?
Or will it simply rap everyone on the knuckles and not take any legal action against them?
And, if the latter, would the ICC – or rather the UN Security Council since South Sudan is not an ICC member – judge that as holding them sufficiently “accountable”?
Or would the ICC/ Security Council decide instead that the leaders have been granted impunity and so take up the case? With all the Bashir-like reverberations that would entail?
International criminal justice is not easy, for anyone.