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Home International Organisations Archive for category "The African Union"

Two Times Too Many: Botswana and the Death Penalty

Published on March 30, 2018        Author: 
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Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.) Read the rest of this entry…

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African Union v International Criminal Court: episode MLXIII (?)

Published on March 23, 2018        Author: 
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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position. Read the rest of this entry…

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Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Published on December 5, 2017        Author: 
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On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. Read the rest of this entry…

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Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 
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The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The AU’s Extraordinary Summit decisions on Africa-ICC Relationship

Published on October 28, 2013        Author: 
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Dr Solomon Ayele Dersso is a senior researcher at the Institute for Security Studies, Addis Ababa and Adjunct Professor of Human Rights, College of Governance, Addis Ababa University.

Introduction

The African Union (AU) Assembly, the highest decision making body of the continental organization, took a decision on Africa’sAfrican Union relationship with the International Criminal Court (ICC) at its extraordinary summit held on 12 October 2013. In this commentary I wish to reflect on the details of the major points of the decision, their likely outcome and their implications with respect to a) the on-going Kenyan cases and b) immediate future of Africa-ICC relationship. (photo, African Union headquarters, credit)

As I will show below, the implication of the decision is that not only that Africa-ICC relationship is today worse than before the summit but also there is serious possibility that it would even get much worse.

Immediate context for the extraordinary summit

With the ascendance of Uhuru Kenyata and William Ruto to power in Kenya through generally free and fair elections taking advantage of the cases opened against them at the ICC, a clear case of tension between popular sovereignty (expressed through the ballot) and the demands of international justice arose. This issue predictably emerged on the agenda of the African Union when Uhuru Kenyata attended for the first time as President of Kenya the summit of the AU Assembly held in May 2013.

During the debate at the AU Assembly, many expressed the view that the continuation of the ICC cases against President Kenyata and his deputy Ruto undermines the sovereignty of the people of Kenya who expressed their will in a vote to represent them as their leaders and threatens the process of reconciliation in the country. The 21st summit of the AU Assembly accordingly adopted a decision (at p. 14) requesting the ICC to refer back to Kenya its cases against Kenyan President Kenyata and his deputy. Read the rest of this entry…

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The African Union, the ICC and Universal Jurisdiction: Some Recent Developments

Published on August 29, 2012        Author: 
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Over the last few years, the African Union (AU) Assembly, (composed of Heads of States and Governments), has concerned itself with a number of issues relating to international criminal law (see previous posts by me here, here, and here; and by Max Du Plessis and Chris Gevers here and here). Last month, the AU Assembly held its 19th Summit and continued the trend of making decisions with regard to international criminal justice (see here for the full text of the Assembly decisions). Earlier this week, Max Du Plessis wrote about the decision of the AU Assembly at this summit to postpone consideration of a draft protocol that would amend the Statute of the African Court of Human Rights and Justice to give it jurisdiction to try international crimes. As has now become usual, the AU Assembly, at this latest summit, also adopted decisions on the International Criminal Court and on the Abuse of the Principle of Universal Jurisdiction. Both of these decisions contain new developments from previous decisions which are analysed below. There is a call for African States to conclude bilateral immunity agreements and the AU has adopted a Model Law on Universal Jurisdiction.

The Impact of the ICC on the Venue of the Summit

The question of where the AU summit would be held was dominated by the fallout of the strained relationship between the AU and the International Criminal Court. The venue of the Summit was changed from Malawi to Addis Ababa, the seat of the AU, just one month before the meeting as the AU refused Malawi’s request for Sudanese President Omar Al Bashir not to be invited to the meeting. Malawi, a party to the Statute of the International Criminal Court, stated that it had an obligation to arrest Bashir, who is wanted by the ICC, were he to visit Malawi. Read the rest of this entry…

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Head of State Immunity is not the same as State Immunity: A Response to the African Union’s Position on Article 98 of the ICC Statute

Published on February 13, 2012        Author: 
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Jens Iverson is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, University of Leiden, the Netherlands.

On 9 January 2012, the African Union (AU) Commission issued a press release responding to the decisions (see here and here) issued by Pre-Trial Chamber I of the International Criminal Court (ICC) last December regarding the “alleged” failure by Chad and Malawi to comply with the cooperation requests with respect to the arrest and surrender of President Al Bashir of Sudan (For previous EJIL:Talk! Commentary on the ICC decisions and the AU response see here and here). In the press release, the AU makes the  assertion that the decision has the effect, inter alia, of:

“Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless.”

There has been much discussion (including by Dapo Akande on this blog and elsewhere) regarding the meaning and effect of Article 98 of the Rome Statute. Paragraph 1 of that provision states that:

 “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

 Unfortunately, the following points are often not emphasised in discussions or rulings on Article 98(1) and are entirely overlooked by the AU Commission:

i.          Article 98(1) only covers “State or diplomatic immunity of a person or property of a third State”;

ii.         Head of state immunity is not the same thing as either a) state immunity or b) diplomatic immunity; and

iii.       Head of state immunity is the relevant immunity in this case. 

Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.  As is well known, Article 27(2) clearly and unambiguously states that immunities which may attach to the official capacity of a person do not bar the Court from exercising jurisdiction over such a person.  Particularly in light of Article 27(2) and the obvious importance of the question of head of state immunity, if the framers of the Rome Statute intended Article 98(1) to apply to heads of state, one might have expected that explicit language to that effect would have been negotiated at the Rome Conference.  It was not.  Rather, as this analysis will briefly elaborate, it appears that Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account. 

Read the rest of this entry…

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The African Union’s Response to the ICC’s Decisions on Bashir’s Immunity: Will the ICJ Get Another Immunity Case?

Published on February 8, 2012        Author: 
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After deciding the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (about which I and others will have more to say on the blog soon), there is the prospect of the International Court of Justice (ICJ) being asked to decide another immunity case. At the summit of the Assembly of the African Union held last week in Addis Ababa, Ethiopia, African Heads of States and Heads of Government  requested:

“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also ” urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

Read the rest of this entry…

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The African Union takes on the ICC Again: Are African States Really Turning from the ICC?

Published on July 26, 2011        Author: 
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In the latest summit meeting of the African Union (AU) held in Malabo, Equitorial Guinea, the AU Assembly of Heads of States and Governments has reiterated its opposition to a number of prosecutions at the International Criminal Court (ICC). Readers will recall that all the situations under investigation and prosecution at the ICC relate to African countries. While half of these situations were referred to the ICC by the African States themselves (Democratic Republic of Congo,Uganda, Central African Republic), the AU objected to the decision of the ICC to prosecute Sudanese President Omar Al Bashir. It has called on the UN Security Council to act under Article 16 of the Rome Statute and defer proceedings against Bashir. It has also decided that African States should not comply with the ICC with regard to the Bashir case, including a call for non-compliance with the arrest warrant for Bashir (see previous posts here). In addition, the AU has also called on the UN Security Council to defer the investigations and prosecutions in the Kenya situation (see posts by Max du Plessis and Chris Govers here and here). At the latest AU summit, the AU Assembly has reiterated these calls with regard to the Bashir case and the Kenyan situation. It has now also also called on the Security Council to defer the investigations in Libya and called on AU members not to cooperate with the ICC with regard to the recent arrest warrant for Gaddafi, his son and the Libyan intelligence chief (on which see this post).

So the tension between the AU and the ICC still seems relatively high and is worrying given the fact that the African regional group is the largest grouping among ICC States parties. However, the picture is mixed and all is not doom and gloom. Despite these AU decisions there are still positive signs of support by African States for the ICC. Firstly, one should recall that those African States that have “self-referred” matters to the ICC continue to support ICC prosecutions and to cooperate with the Court. Indeed, the AU itself has not called for non-cooperation with regard to those situations. Secondly, African States have continued to ratify the Rome Statute, the latest of which is Tunisia. Also Cote d’Ivoire as a non party has recently reconfirmed its acceptance of ICC jurisdiction over events in that country. Thirdly, even with regard to Sudan, the AU has not called for deferral of prosecutions in (or non-cooperation with the ICC with regard to) the entire situation. It has only singled out the Bashir case which is only one of the prosecutions with respect to Darfur. Fourth, the position of African States is not solidly in support of the AU position with regard to the cases where it has called for non-cooperation. Some African States have taken a different view and consistently done so. Botswana has probably been the most vocal against the AU decisions on these issues. Just days after the recent AU decision, the Goverment of Botswana issued a statement where it rejects the AU Assembly position, “reiterates her position in support of the [ICC] warrant of arrest and  “calls on fellow members of the AU to support the ICC in carrying out its mandate to apprehend the Libyan leader, as a critical step towards alleviating the plights of the Libyan people, and paving the way for a new democratic dispensation in that country.”

There have been some questions as to whether AU Assembly decisions on this issue impose obligations on AU Members.  Read the rest of this entry…

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The Obligation of African Union States to Implement ICC Arrest Warrants

Published on February 4, 2011        Author: 
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Max Du Plessis is associate professor at the University of KwaZulu-Natal and Senior Research Associate at the International Crimes in Africa Programme of the Institute for Security Studies. Chris Gevers is a lecturer at the Faculty of Law at the University of KwaZulu-Natal.

Earlier this week, Dapo had a post dealing with the obligations of contracting parties to the Genocide Convention to implement ICC arrest warrants and pointing to the UCLA Online Forum debate on this topic. In what follows we hope to contribute to the discussion around point (ii) of the topics raised by Dapo’s post and the UCLA debate: the obligations of African Union States Parties to implement ICC arrest warrants.  Our contribution is drawn from our upcoming position paper for the Institute for Security Studies’ International Crime in Africa Programme. The paper provides an analysis of the various obligations Kenya and other States Parties must meet to the ICC in respect of both al-Bashir and the Court’s ongoing investigation into the post-election violence in Kenya, and which considers the nature of the obligations on African States Parties such as Kenya in respect of the AU decision, and in particular the demand for non-cooperation in respect of al-Bashir.  This paper builds on the ISS’s previous position paper – An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, by Dapo Akande, Max du Plessis and Charles Jalloh, previously discussed on this blog (here and here) – and similarly the Institute plans to launch the paper internationally in due course.

Firstly, decisions of the AU Assembly are potentially binding on member states. Although there is no express provision in the AU’s Constitutive Act conferring this power, it is clear from article 23 – which sets out the consequences for failing to abide by such decisions – as well as a thorough contextual reading of the Constitutive Act that the Assembly is empowered to do so. Even if the text of the AU Constitutive Act is considered insufficient or equivocal in this regard, given the considerable mandate the body has been given by its member states, those advocating for the binding nature of Assembly decisions could rely on the doctrine of implied powers to support their position. Further, as Bill  Schabas notes in his piece on the UCLA Law Forum, the AU Commission clearly views the AU’s Bashir Decision as binding on its members. Read the rest of this entry…

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