The African Union summit, held this past week in Ethiopia, could have important implications for the ICC’s relationship with African states. Despite such strong support among African states in the Rome Treaty negotiations for the ICC, the Court’s focus on African conflicts and elite perpetrators since then has prompted a mixed record of cooperation and support. So why might the AU and ICC mend fences?

New AU Commission Chairperson Dlamini-Zuma

Good Riddance to Ping!

The summit delegates elected South African diplomat Nkosazana Dlamini-Zuma as their new and first female chairperson of the African Union Commission. Dlamini-Zuma pledges to work toward a more united Africa and to tackle the continent’s hotspots, hoping to improve upon the AU’s poor responses to crises in Côte d’Ivoire and Libya and address current crises in Mali, Democratic Republic of the Congo, etc.

Dlamini-Zuma defeated incumbent chairperson, Jean Ping of Gabon, who has vilified the ICC and former Chief Prosecutor Moreno-Ocampo for unfairly targeting African states. Under Ping’s leadership the relationship between African states and the ICC became more polarized and divisive. In his term, AU delegates passed a resolution of non-cooperation with respect to the ICC’s arrest warrant for President Bashir and sided with the Kenyan government to seek a deferral of its ICC cases. Both efforts were rejected by the Court and the UN Security Council. With Ping out and Dlamini-Zuma in, the AU’s continued diplomatic support of this opposition to the ICC is in jeopardy.

Politics of ICC Support

Dlamini-Zuma is a South African diplomat and South Africa is a well-known supporter and defender of the International Criminal Court. She was Minister of Foreign Affairs (1999-2009) when South Africa ratified the Rome Statute in 2000, making it the 23^rd State Party.  South Africa supported the Bashir arrest warrant and opposed the deferral of the Kenya cases.

Image from Human Rights Witness

African states are more divided and nuanced on the ICC than what is suggested by AU support for Sudan and Kenya. As Kurt Mills explains in his recent article in Human Rights Quarterly, “the AU position is a façade masking significant arguments and disagreements, as well as significant support for the ICC.”  There are those states, such as Botswana, Ghana, South Africa and States Parties that have self-referred their situations, who support the ICC. Whereas those that oppose the ICC’s targeting of Bashir and Kenyan elites argue for a deferral in the interests of stability and not for wholesale impunity. Moreover, the reason that the summit took place in Ethiopia was that its original host – Malawi – pledged to arrest President Bashir if he accepted the AU’s invitation to attend

Proposal for a Regional Criminal Court

In parallel to these specific disagreements, there is a growing general perception that the Court’s judicial interventions are neo-colonial in their intentions and effects and concern that targeting ruling political elites endangers stability. The alternative, as the AU recommended for both Sudan and Kenya, is to mete out accountability on African soil and in deference to domestic political and security contexts. This could come in the form of hybrid courts or a regional mechanism. A draft protocol was to be considered at the summit that proposed expanding the mandate of the African Court of Justice and Human Rights to have criminal jurisdiction over genocide, war crimes and crimes against humanity. African justice ministers already approved the measure. But it’s not clear whether a regional criminal court would mean greater contestation or complementarity of justice between Africa and the ICC.

Bensouda is Optimistic

On the other side of this relationship is new ICC Chief Prosecutor, Fatou Bensouda, who might engender a more positive relationship between the African Union and the ICC. African states lobbied hard for her election and she is likely to be less brash, reckless, and “political” as her predecessor. In a recent interview she stated that the African Union has shown “strong leadership” on international justice and she expects to have a good working relationship with the organization.

Certainly, developing patterns in the ICC’s selection of situations and the prosecutorial strategy for cases will affect the Court’s relationship with African states. The ICC also needs to diplomatically engage with political elites and institute deeper and broader outreach strategies with victim communities. The burden of cooperation and good diplomacy is not on African states alone.