AU: No trials in The Hague

The African Union (AU) demands that International Criminal Court (ICC) proceedings against Sudan’s Omar al-Bashir—as well as the court’s Kenya case—be deferred to the East African Court of Justice (EACJ).
By Josephine Uwineza, The Hague
When AU leaders met in Addis Ababa, Ethiopia earlier this month the directive they gave to their legal committee was clear: review the Africa-ICC relationship with a view to blocking the trial of four Kenyans whose cases now sit before the ICC.
“The purpose of this meeting is to expand the jurisdiction of the African Court of Justice and Human and Peoples' Rights so that it can deal with international crimes such as genocide, crimes against humanity and war crimes…,” said the AU.
On our own soil
It’s just the latest salvo in the battle between the AU and the international courts it sees as stepping on its nations’ sovereignty. At a January summit, the AU asked its members to stop cooperating with the ICC. And at the Union’s latest meeting this month, its legal experts were tasked with coming up with a common Africa-wide position vis-à-vis the ICC.
The antagonism between the court and the Union doesn’t end there: The AU is also considering asking the International Court of Justice (ICJ) for an advisory opinion concerning the immunity of state officials.
“The ICJ has been dealing with immunity quite a lot these days, most recently the immunity of a state from litigation, and a few years [ago] the immunity of a minister of foreign affairs,” William Worster, a lecturer of international criminal law at The Hague University, told RNW.
“In the latter case, the ‘arrest warrant case’, the ICJ held that a minister of foreign affairs (as well as a head of state and head of government) is immune from prosecution by another state’s authorities, even in cases of crimes against humanity.”
But in order for the AU to get the advisory opinion it seeks, it has to go through the United Nations--the institution that referred the Sudan situation to the ICC. “One preliminary matter is that the ICJ can only entertain requests for advisory opinions from the UN and certain UN bodies,” says Worster. “The AU is not included, but a UN body might request the opinion…on behalf of the AU. The limitation will be that the particular UN body must need the opinion for its work.”
Down this road before
Even if the case comes before the ICJ, ICC judges have already ruled on immunity and cooperation issues. In December 2011, the ICC dismissed the legality of AU resolutions ordering its members to ignore the court. Judges handed down that decision in response to observations filed by Malawi on why, despite being a signatory to the court’s treaty, it allowed Sudanese President al-Bashir to visit without detaining him in compliance with the ICC’s arrest warrant for him.
ICC judges have also rejected the AU’s January resolution calling for the deferral of Sudanese President Umar al-Bashir’s case to an African court. When it reported Malawi to the UN Security Council for failing to arrest him, judges argued that “the principle in international law is that immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court.”
Kenya’s last chance
The same goes for the case of four Kenyans accused of responsibility for the 2008 post-election violence that led to 1,133 deaths and the displacement of over 500,000 people.
Uhuru Kenyatta, Francis Muthaura, William Ruto and Joshua Sang have already been committed to a full trial at the ICC. The Appeals Chamber rejected their final appeal challenging the court's jurisdiction Thursday, meaning they are ready to be hauled before ICC trial judges.
Leaders at May’s AU summit proposed that the cases of the four suspects be transferred from The Hague to the East African Court of Justice in Arusha. But ICC spokesperson Fadi Abdalla said, “It is technically impossible to transfer the cases from the Netherlands to Tanzania in the manner suggested by the Arusha-based East Africa Legislative Assembly.”
Worster agrees. “Challenges to admissibility can only be made once, unless the court gives special permission for an additional challenge,” he told RNW. “The ICC held that once that window closes, the challenge can no longer be made, regardless of the development of the situation.”
Kenya had already challenged the admissibility of the case to the ICC. But in September 2011, a majority ruling by ICC judges rejected Nairobi’s appeal.
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