The African Union, Sudan And The International Criminal Court

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One of the most controversial decisions of the recent AU Summit was the decision by the African countries not to co-operate with the International criminal Court (ICC)’s indictment of the Sudanese president, Omar el-Bashir. The final resolution of the Summit also condemned the conduct of the ICC’s chief prosecutor, Luis Moreno-Ocampo. The resolution stated clearly that “AU member states shall not cooperate with the ICC in the arrest and surrender of President Omar al-Bashir of Sudan”. In a post-summit press briefing, the AU Chairman, President Bingu wa Mutharika of Malawi, insisted that al-Bashir cannot be tried outside Africa, pointing out that the AU has requested “the United Nations General Assembly to postpone the execution of that arrest warrant for 12 months, during which we will look at the issue”. He added further that “we have decided to establish our own mechanism”.


The Sudanese president had been indicted by the ICC last year for war crimes in Darfur. The 2009 ICC statement of indictment said president el-Bashir was “suspected of being criminally responsible, as an indirect co-perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property”. Last month, the ICC added genocide to the charges against the Sudanese president. The indictment had come against the background of conflicting accounts of the statistics of the Darfur crisis, with international sources claiming that over 400,000 people have died in the conflict, and over 2.5 million people being displaced, since the commencement of the Darfur crisis, in 2003. These attacks have been blamed on militias known as “Janjaweeds”, said to be backed by the Sudanese authorities. These statistics are disputed and rejected by the Sudanese government.


Reports from the AU Summit described very fierce debate as the African countries removed the language which re-iterated the previous positions on granting immunity to President el-Bashir on the continent. On the back of the ICC indictment, a number of African countries, notably Botswana, Uganda and South Africa, had vowed to arrest the Sudanese president and hand him over to the ICC for prosecution, if he stepped on their soil. Non-ICC countries such as Libya, Eritrea and Egypt had argued for the maintenance of the hard-line language and approach originally taken by the AU. But an even more hard-line resolution against the ICC indictment came out of the Summit. The text asked African countries to balance their obligations to the ICC and those to the AU. President wa Mutharika said at the post-Summit press conference that “Let us look at the position of the ICC. Do they really have a right to tell us what to do on this continent?…Do they have a right to try Sudan, who’s not a member of the ICC?” The Summit itself had also expressed “concern over the conduct” of the ICC prosecutor as well as accused him of “making egregiously unacceptable, rude and condescending statements on the case of President Omar al-Bashir of the Sudan and other situations in Africa”.


So complete was the rejection of the ICC, that the Summit similarly rejected a request by the ICC to open a liaison office in Addis Ababa. Early in July, Judge Sang-Hyun Song, the ICC president met the AU Commission Chairperson, Jean Ping, who re-iterated the AU’s commitment to ending impunity. He however rejected the request for the ICC liaison office in Addis. Jean Ping said “the ICC has no office outside of its headquarters. The issue is why are they only interested in opening an office in Africa, why not in Europe or Asia?” Jean Ping said Moreno-Ocampo, the ICC prosecutor, “does not care”, if his actions jeopardize peace in Sudan, adding that the Hague-based court was “bullying” Africa. This African feeling of disgust at the ICC was firmly conveyed by AU Chairman, wa Mutharika; “as Chairman”, he stated, “I would not sweep the issue of el-Bashir under the table”. He however re-iterated that the Sudanese president will not be tried outside the African continent. “We are not condoning impunity and we are not condoning any crimes that may have been committed by anybody, whether he is a head of state or not, against humanity. But these things need to be proved”.


The AU Summit resolution also frowned at what was described as the “blatant abuse of the principle of universal jurisdiction”, asking for “immediate termination of all impending indictments” as well as the need for the international community to respect “the immunity of state officials when applying the principle of universal jurisdiction”. The African leaders, who met behind closed doors, were reported by the Pan African News Agency (PANA), as examining the possibilities of an African trial for President el-Bashir, and the proposal was defeated. Expectedly, the decision against the ICC indictment has been condemned by civil right activists and international human rights bodies. Amnesty International accused the AU of being complicit in human right abuses on the continent and asked that the body must be held accountable for a culture of impunity. It said while the AU ought to lead by example, in certain situations, the AU itself “has become part of the problem”.


The civil society attitude was represented by the views expressed by Oby Nwankwo of Nigeria’s Civil Resource Development and Documentation Center, who stated that “Africans want redress for victims, not protection for alleged abusers”. Oby added that “we expect more from our leaders than calls not to cooperate with the arrest of al-Bashir, who is wanted on charges of heinous atrocities in Darfur”. These might well be true; however, as a journalist and African, I am worried that the ICC has not issued indictments for George Bush and Tony Blair for war crimes in Iraq. These individuals illegally invaded Iraq and have been responsible for the death of over one million people and the destruction of that country. They are allowed to remain on the international circuit and could this be because as leading imperialist politicians, they cannot be touched by the ICC? And why are civil rights groups and international human rights organizations not asking for the arrest and prosecutions of these leading imperialist war criminals? Could it also be because of the funding coming from imperialist institutions? Africa must not accept impunity or crimes against humanity; however, when there are double standards in dealing with crimes against humanity: indictments and threats of prosecution against Africans like el-Bashir and looking the other way, in respect of imperialist war criminals, like George Bush and Tony Blair, we cannot claim to be fight crimes against humanity.

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