AU’s killer blow to the ICC
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JOHANNESBURG: The AU has made it crystal clear – it no longer respects the jurisdiction of the International Criminal Court (ICC) in Africa, and it will rely in future on the African Court of Justice and Human Rights to prosecute cases of war crimes, crimes against humanity and genocide.
The invitation of Sudanese President Omar al-Bashir to the AU Summit in Sandton, despite his indictment by the ICC on exactly these crimes, has exposed the fact that the AU considers the ICC largely irrelevant. This has the potential to sound the death knell of the ICC, considering that practically all the cases it prosecutes are in Africa.
“The South African government’s cabinet decision to host Bashir will trump the ICC arrest warrant at the end of the day,” a senior government official told Independent Media on condition of anonymity.
“South Africa considers itself bound by the decisions of the AU with regards to the ICC, and believes the continent must speak with one voice.”
The North Gauteng High Court ruled yesterday that Bashir should not leave South Africa until the case was heard at 11am today. This was after an application was brought by the South African Litigation Centre to have Bashir arrested.
This follows a Hague judgment making it clear that South Africa had an obligation to immediately arrest Bashir on his arrival in South Africa, and surrender him to the ICC.
ICC Judge Cono Tarfusser stated that South Africa was aware of its obligations under the Rome Statute, and could not invoke any other decision, including one taken by the AU, to the contrary. The government nevertheless stands by its order issued last Thursday that al-Bashir is not to be arrested.
What underlies the South African government’s decision is the fact that the February AU Summit reiterated a 2012 decision that African states must not co-operate with the ICC.
This explains why Bashir attended the Comesa meeting in the Democratic Republic of Congo (DRC) in March 2014 and the government of the country, which is also a signatory to the Rome Statute, refused to arrest him. The DRC government was at the time also warned to arrest Bashir and transfer him to the ICC as soon as he set foot in Kinshasa.
In July 2013, the government of Nigeria also ignored the ICC and hosted Bashir, indicating it believed the AU overrode the dictates of the ICC when it came to Africa.
Elise Keppler, justice director of Human Rights Watch, has warned in response: “Not arresting Bashir would be a major stain on South Africa’s reputation for promoting justice for grave crimes.”
According to Netsanet Belay, Amnesty International’s Director for Africa, “Bashir is complicit in the killing, maiming, and torture of hundreds of thousands of people. He is a fugitive from justice, and South Africa has an obligation to arrest him given his long-standing indictment”.
The AU was quick to respond, reiterating its commitment to fight impunity, but not under the ICC’s selective justice which did not apply the law universally.
The AU criticised the fact that ICC prosecutorial interventions were focusing exclusively on African cases. It was opposed to the arrest or arraignment of any sitting African Head of State, and would be uncompromising on this issue.
The arrest of Bashir in South Africa would set a precedent for other leaders on the continent who could be subject to the criminal jurisdiction of the ICC for their actions.