On 15 November 2013, immediately after the United Nations Security Council (UNSC) voted against the African Union’s (AU) request for deferral of the trials of Kenya’s President Uhuru Kenyatta and Vice President William Ruto for a year, the United Kingdom (UK) Permanent Representative to the UN, announced that “there is a right place and wrong place” to present the AU’s requests for deferral of cases. Similarly the US He was referring to the Assembly of States Parties (ASP). Indeed, the Ambassador appeared to understand this only in a very narrow way. The demand by the AU was motivated by the question of whether the UNSC had exercised its power in manner that enhanced its legitimacy or not. Indeed for this reason, the Permanent Representatives of various African countries expressed their total disappointment on the double standard of UNSC and its failure to discharge its responsibility. It is somewhat contradictory that while the UK and US as a permanent member of the UNSC are willing to refer cases on Darfur or Libya to the ICC, the UK and US Representatives argues as if the UNSC has no power to defer ICC cases for a year.
Similarly both the President of the ICC and the chair of the ASP have been active in arguing that African countries had referred five cases to the ICC, and that the ICC had not specifically targeted African countries. These are generally evasive arguments at best; arguments that are not only simplistic, but also symptomatic of the challenges the ICC is facing in solving its contentious relations with Africa.
The AU’s dispute with regard to the ICC is not whether African countries have referred five cases to the ICC, but rather why the ICC is only prosecuting Africans. Are Africans the only one committing crimes proscribed by the Rome Statute? Did the UNSC referral and deferral powers politicize the ICC’s judicial role and led to the application of a double standard? Does the unrepresentative nature of the UNSC and longstanding demands for its reform affect the stand of the ICC in the eyes of the weakest countries? Did the activist prosecutorial policy and selective prosecution policy pursued by the former chief prosecutor, Mr Luise Ocampo, place the ICC in a position conducive to political wrangling and selective justice? Is the UNSC’s failure to formally respond to AU requests to defer trials for a year appropriate? Did the ICC fail to dispel the widespread misunderstanding about the work of the ICC and the political misuse of the referral of cases by African states? Are there some discrepancies in the interpretation of the Rome Statute that cause legitimate legal concerns and debate, particularly in regard to the rejection of impunity and applications of immunity with regard to officials of non-states parties? Should the UNSC enjoy the referral and deferral powers it has now?
The solution to the current challenges affecting relations between ICC and AU may require a generational shift of attitude on the part of African leaders and more understanding, credibility and scrupulousness on the part of the ICC. Such a change of attitude will not come unless the ICC and its statute are amended to address some fundamental questions including the referral and deferral powers of the UNSC; the issue of double standards in the application of justice with a focus only on Africans; the peace-justice dilemma during ongoing conflicts and the place of transitional justice mechanisms; and the application of the principle of complementarity when a country or a regional mechanism attempts to address impunity. With 34 of its member states being state parties to the ICC, the AU’s main disagreement is not with the ICC, as a court, but rather with the prosecutorial policy, the powers of the UNSC and more fundamentally with some of the provisions of the Rome Statute of the ICC. As with any agreement, the States Parties could amend the Rome Statute or have the right to withdraw from it if they wish to do so. The ASPs have accordingly all the right to collectively deliberate, consider and act upon issues that would be in the interest of Africa. The fact that the AU, as the premier Pan-African organization to which all ASPs are member states, have a solid single voice on these issues indicates a continental achievement rather than fragmentation within the AU.