In Summary
  • The clause gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.
  • The International Criminal Court is intended to be a complimentary court to regional international tribunals, but with the inclusion of such a broad and ambiguous clause, there can be no complementarity between the ICC and the African Court.
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On June 27th at the 23rd AU Summit in Malabo, Equatorial Guinea, the General Assembly surreptitiously adopted draft legal instruments giving immunity for Heads of State and government at the African Court of Justice and Human Rights.

The immunities article (Article 46A bis "Immunities") states that:

"No Charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office."

Most notable about the structure of this particular article is the ambiguity in relation to exactly who is liable for prosecution. In totality, the article gives immunity to just about every senior government official in every government of every member state of the AU.

The clause not only completely weakens the jurisdiction and ultimate purpose of the African Court of Justice and Human Rights, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.

Steve Arther Lamony, Senior Adviser - AU, UN and Africa Situations at the Coalition for the ICC (CICC) put it most succinctly:

“This outcome is disgraceful. The principle of no immunity for grave crimes before international tribunals or courts - no matter the status of the offender - is crucial to the fight against impunity and part of the foundation of the Rome Statute of the ICC, which most African states have signed and ratified. African members of the ICC should bear that in mind and not ratify this protocol. Africa should be moving forward in the fight against impunity, not retrogressing!”

Such a move by the AU goes directly against its own efforts, through the Peace and Security Council, to stabilize these countries and bring about constitutional order. There certainly can be no peace without justice.

“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational,” said Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy.

Indeed, the very creation and adoption of the clause exacerbates many conflict situations. It gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.

“Accountability is surely needed in countries like the CAR and South Sudan if they are to return to peace. Under the AU’s proposal, however, government leaders would be beyond the reach of justice even if they were found to have directed alleged atrocities,” says Lamony.

WORRIED ABOUT THEIR OWN FATE

The adoption of such a protocol seems to be only the tip of the iceberg when it comes to the apparent reluctance of the African Union to commit to the pursuit of justice for African citizens.

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