The African Union (AU) The African Union (AU) was created in July 2000 through the signing of the Constitutive Act as the successor institution to the Organisation of African Unity (OAU), the pan-African political entity that had existed since 1963. The AU became operative in July 2002. Its rather complex institutional framework has been loosely based on the European Union and comprises the Assembly of Heads of State and Government, the Executive Council (EX), the Pan-African Parliament, the Court of Justice (not yet in operation), the Commission, the Permanent Representatives Committee (PRC), the Peace and Security Council (PSC), the Economic, Social and Cultural Council and the Financial Institutions (not yet in operation). The objectives of the African Union include achieving unity and solidarity between African states; the defense of Member States' sovereignty; the continent's political and socio-economic integration; the promotion of democratic principles and institutions, as well as popular participation, good governance and sustainable development; the promotion and protection of human rights; and enabling the continent to play its rightful role in the global economy and in international negotiations. The Union has the express right to intervene in a Member State when grave circumstances (war crimes, genocide or crimes against humanity) are present. Currently, the Organization has a membership of 53 states, i.e. all African countries with the exception of Morocco. Recent Developments The AU stance towards the International Criminal Court warrant for the arrest of Sudanese President Omal Al Bashir On 14 July 2008, the Prosecutor of the International Criminal Court (ICC) recommended that a warrant of arrest be issued for Sudanese President Al Bashir for his involvement in the war crimes and crimes against humanity committed in Darfur between 2003 and 2008. On 4 March 2009, the ICC Pre-Trial Chamber decided to issue the warrant.[1] The AU reacted negatively to those developments. As far as the Prosecutor's actions are concerned, on 21 July 2008 and again on 22 September 2008 the Peace and Security Council (PSC), the entity responsible for preventing and solving African conflicts and disputes, requested that the UN Security Council intervene and do no less but suspend the proceedings against Al Bashir pursuant to Article 16 ICC Statute.[2] The same view was adopted by the Assembly of the Union which, in February 2009, justified the call for deferment by arguing that if the arrest warrant were approved it "would seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur".[3] Moreover, by evidently subscribing to the argument that the ICC was targeting Africa for political reasons, it asked the AU Commission to promptly convene a meeting of those Member States that have ratified the ICC Statute to exchange views on its work in relation to Africa. When the arrest warrant was issued, the PSC issued a Communiqué insisting that the warrant meddles with and could seriously undermine the process of lasting peace, reconciliation and democratic governance in Sudan. Moreover, the PSC again pressurized the Security Council to apply Article 16 of the ICC Statute. Finally, so as not to give the impression that it exonerates Al Bashir of the crimes accused of, it called for the prompt launching of the High-Level Panel of Eminent Personalities on Darfur (AUPD), which had been established during its Meeting of 21 July 2008 but remained inoperative, to examine the situation and submit recommendations on addressing accountability and combating impunity.[4] The meeting of African contracting parties to the ICC Statute took place on 8 and 9 June 2009. Before the meeting, fears had been expressed that it could result in a massive withdrawal from the work of the ICC (currently 30 African states participate in the ICC making it the largest regional group).[5] In the event, these fears did not materialize and the meeting reaffirmed a commitment to the Court. The Chairperson of the ICC Assembly of States Parties himself downplayed and dismissed as rumor the prospect of withdrawal or other hostile action.[6] However, it would appear that it was more a lack of consensus (the preferred means of doing business in the AU) than anything else that led the meeting to adopt six neutral recommendations and not take any drastic action.[7] However, things took a completely different course when the issue was deliberated during the 13th Assembly Session hosted in Libya under the chairmanship of Mouammar Ghaddafi on 1-3 July 2009. There, countries like Sudan and Libya, which had not been allowed to participate in the June meeting, were instrumental in adopting a decision, which resolved that Member States would not cooperate in arresting and surrendering Al Bashir to the ICC.[8] To put it otherwise, the Sudanese President may circulate freely across Africa without fear of being captured and extradited to the ICC. Finally, the decision expressed the Assembly's preoccupation about the behavior of the Prosecutor, since in the ICC's seven years of operations he has only examined African cases. **** The AU is not the only regional organisation to have assailed the ICC over Al Bashir: the League of Arab States[9] and the Organisation of the Islamic Conference[10] have issued similar protestations but have not moved to any further action. The Assembly Session in July 2009 was attended by only half the Member States and there have already been declarations by countries like Botswana denouncing this decision. Considering that Article 7(2) of the AU Constitutive Act prescribes that two thirds of Member States constitute a quorum, the decision is of dubious constitutionality, even though the Press Release issued by the AU Commission on 14 July 2009 in support of the decision does not touch upon the crucial issue of quorum.[11] Moreover, the fact that a number of contracting parties have so directly announced their deliberate intention to flout their obligations emanating from the ICC Statute raises the issue of their international responsibility. Notwithstanding these considerations, the fact remains that the plenary organ of a very large regional institution has resolved to collectively renounce duties owned to another international institution. This aspect of the decision should be a cause of concern and is reminiscent of the decisions reached by the same organ in 1997 and 1998 calling upon Member States to disregard the Security Council sanctions imposed on Libya.[12] The ICC has not reacted to this development. Arguably, a lot will depend on what the AUPD, which is chaired by former South African President Thabo Mbeki, will manage to achieve in the months to come. On 7 July 2009, the ICC Prosecutor met with the AUPD for consultations; their content has not been made public. One way forward might be for the Prosecutor to adopt a wait and see approach towards Al Bashir and press for the arrest and extradition of the other two individuals that were indicted together with him, namely the Sudanese government minister Ahmed Harun and Arab militiamen leader Ali Kushyab. But on the wider issue of having its authority so blatantly challenged, can the ICC remain silent? Recent Development: AU acts against the application of the principles of universal jurisdiction by third states The fact that a number of Western states (e.g. Belgium,[13] Canada, The Netherlands, France and Spain) have utilized their domestic legislation on universal jurisdiction to prosecute and convict third country nationals for having committed war crimes and crimes against humanity in African countries, even as far back as the 1980s and 1990s, has alarmed the continent's leaders. According to them, applying the principle of universal jurisdiction in such circumstances is an affront to Africa and abusive behaviour. The 11th Assembly of the Union meeting in July 2008 put it plainly as follows: "The political nature and abuse of the principle of universal jurisdiction by judges from some non-African States against African leaders, particularly Rwanda, is a clear violation of the sovereignty and territorial integrity of these States". The Assembly went on to argue for the need to create an international regulatory body with a mandate to review complaints or appeals arising out of instances where said principle has been violated and called for discussions with the European Union and the United Nations to resolve the matter.[14] Apparently, there have never been any deliberations between the AU and the UN. On the contrary, the AU - EU Ministerial Troika discussed the issue during its meetings in September and November 2008. It resolved to set up a technical ad hoc expert group to elaborate on universal jurisdiction from the perspective of both the EU and the AU. While the group was carrying out its mandate, the 12th Assembly of the Union session, which took place in Addis Ababa between 1 and 3 February 2009, revisited the matter. In the decision it adopted,[15] the Assembly castigated the EU because even though they "were already in discussion to find a durable solution to this issue" an arrest warrant was executed against an African on European soil. The case in point concerned Rose Kabuye, a citizen of Rwanda and Chief of Protocol of the country's President, who was arrested in Frankfurt on the basis of a warrant issued in 2006 by a French magistrate citing her suspected involvement in the 1994 assassination of Rwanda's former President, Juvenal Habyarimana. It was this act that sparked the genocide of hundred of thousand of Tutsi and moderate Hutu Rwandans. The issuance and the execution of the warrant caused a diplomatic furore and even led a Dutch Member of the European Parliament to ask the European Commission about the affair.[16] At the end of March 2009, the arrest warrant was lifted by the French judiciary and Kabuye was allowed to return home. It would appear that Rwanda has been instrumental in putting the perceived abuse of universal jurisdiction so firmly in the current AU agenda. Thus, in early November 2008 the Rwandan Prime Minister managed to bring together all African ministers of justice in the capital Kigali and called for "a unified stand to fight neo-colonialism spearheaded by foreign judges hiding under international law".[17] Even though this high profile meeting did set the spirit of the discussion from the African side, the workings of the AU-EU expert group continued. In April 2009, it issued its Report which culminated to seventeen so-called 'recommendations' the majority of which, however, are more conclusions of the finer legal points discussed rather than specific proposals and suggestions for actions to be undertaken by the two sides.[18] The Report concluded with the usual promises of assistance from the EU to Africa and the transfer of know-how. Thus, it was recommended that in the context of the Africa-EU Strategic Partnership, which was agreed in Lisbon in December 2007, the relevant EU bodies could support AU Member States' capacity-building in legal matters such as the investigation and prosecution of mass crimes and other serious crimes of international concern, the protection of witnesses, the use of appropriate forensic methods, etc. The Report was examined during the 12th Africa - EU Ministerial Troika Meeting on 28 April 2009. It was acknowledged that the issue had negative consequences in their relations but, as it was to be expected from such political gatherings, no concrete action was agreed.[19] **** From the way the AU has reacted to the (arguably sporadic) application of the principle of universal jurisdiction by a small number of countries and to the associated issue of the arrest warrant against Al Bashir it is obvious that the AU feels vulnerable to what it apparently perceives as additional points of contention with former colonial powers. This may be the wrong way to look at it because increasingly more and more attention is given to the principle of universal jurisdiction globally. Only a few months ago, the European Court of Human Rights recognized it for the first time in the case of a former Mauritanian army officer who had been sentenced in France for torture on the basis of it.[20] There is no doubt that, as a legal tool, universal jurisdiction could be abused and lead to injustices. However, it is extremely difficult to view it in the context of becoming an aggressive weapon of foreign policy, as the Assembly decisions seem to suggest. Indeed, it might be inappropriate for the AU, as a regional political and security organisation, to discuss these issues; they should perhaps be left to be determined on a bilateral level between the state applying universal jurisdiction and the state claiming that it is illegal to do so. Konstantinos D. Magliveras University of the Aegean August 2009 Footnotes: 1 ICC, Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Doc. ICC-02/05-01/09 (4 March 2009), available at www.icc-cpi.int/iccdocs/doc/doc639078.pdf. 2 PSC, Communiqué of 142nd Meeting, AU Doc. PSC/MIN/Comm(CXLII)Rev.1 (21 July 2008), annexed to Letter dated 21 July 2008 from the Permanent Observer of the African Union to the United Nations addressed to the President of the Security Council, UN Doc. S/2008/481 (23 July 2008); and Communiqué of 151st Meeting, AU Doc. PSC/MIN/Comm.1(CLI) (22 September 2008). The Security Council 'took note' of the former Communiqué in S. C Res. 1828, UN Doc. S/RES/1828 (31 July 2008). Article 16 of the ICC Statute states: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. 3 Assembly of the Union, Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of the Sudan, AU Doc. Assembly/AU/Dec. 221(XII) (3 February 2009). 4 PSC, Communiqué of 175th Meeting, AU Doc. PSC/PR/Comm(CLXXV) (5 March 2009), annexed to Letter dated 6 March 2009 from the Permanent Mission of Libya to the United Nations addressed to the President of the Security Council, UN Doc. S/2009/144 (6 March 2009). 5 Withdrawal is envisaged in Article 127 of the Statute and takes effect one year after notification of intention to withdraw addressed to the Secretary-General of the UN. 6 See http://www.un.org/News/briefings/docs/2009/090610_ICC.doc.htm. 7 J.N. KARIRI, AU REITERATES COMMITMENT TO THE ICC, Institute of Security Studies, 30 June 2009, available at www.iss.co.za. 8 BBC News, 'African Union in rift with court', 3 July 2009, available at http://news.bbc.co.uk/2/hi/africa/8133925.stm. 9 On 30 March 2009, the Arab Summit accused the ICC of employing double standards against Arab countries, a thinly concealed criticism of why Al Bashir stands accused and not the Israeli President. 10 OIC, Final Communiqué of the Expanded Ministerial Meeting of the Executive Committee on the latest developments in the Sudan, adopted in Jeddah on 4 August 2008, available at www.oic-oci.org/english/conf/exec/Final%20Communique-Sudan.pdf. It refers to 'double standards' that directly affect the international legal system's credibility. See also Letter dated 22 July 2008 from the Permanent Representative of Uganda to the United Nations addressed to the President of the Security Council, UN Doc. S/2008/483 (23 July 2008). 11 See http://www.africa-union.org/root/au/index/index.htm. 12 K. MAGLIVERAS AND G. NALDI, THE AFRICAN UNION, 32 (2009). 13 For Belgium's prosecution of former Chadian dictator Hissène Habré, see the previous ASIL RIO Report on the African Union, available at http://www.asil.org/rio/africanunion.html. 14 Assembly of the Union, Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, AU Doc. Assembly/AU/Dec. 199(XI) (1 July 2008). 15 Assembly of the Union, Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, AU Doc. Assembly/AU/Dec. 213(XII) (3 February 2009). 16 Parliamentary Question E-6319/08, 25/11/2008, available at http://www.europarl.europa.eu. 17 E. Musoni, AU Justice Ministers Protest Abuse of Universal Jurisdiction, N.Y. TIMES, (5 November 2008), available at http://allafrica.com/stories/200811050742.html. 18 COUNCIL OF THE EUROPEAN UNION, THE AU-EU EXPERT REPORT ON THE PRINCIPLE OF UNIVERSAL JURISDICTION, Doc. 8672/1/09 REV 1 (16 April 2009). 19 For the Meeting Communiqué, see www.africa-eu-partnership.org. 20 European Court of Human Rights, Application No. 13113/03, Ould Dah v. France, Admissibility Decision 17 March 2009. |
Click on a keyword below to browse reports that are related to the topic:
Accountability
Afghanistan Biketawa Declaration Climate change Data protection Democracy Development Dispute settlement Environmental protection European Union Geneva Conventions Human rights Immigration Internally displaced persons Kyoto Protocol Non-refoulement Occupation Piracy Refugees Rule of law Security Use of force 
 Are you interested in learning more about the International Organizations Interest Group? Visit our portal here. To see upcoming events related to international law, click here.
 The Reports on International Organizations (RIO) is a publication of the International Organizations Interest Group of the American Society of International Law (ASIL). The views expressed in the publication are those of the individual authors and do not necessarily reflect those of the Interest Group, the ASIL, or the international organizations profiled. |
© 2010 American Society of International Law, 2223 Massachusetts Avenue, NW Washington DC 20008
www.asil.org