July 28, 2010 (WASHINGTON) — The heads of states who attended the African Union (AU) summit in Kampala this week decided to take a more radical approach towards the International Criminal Court (ICC) indictment of Sudanese president Omer Hassan Al-Bashir and adopted a final resolution that stresses non-cooperation with the Hague tribunal and also condemned the conduct of its prosecutor.
Over the weekend, delegates from the AU countries reportedly fought a fierce battle that led to removing language that reiterates previous positions on granting immunity to Bashir in Africa and criticizing the ICC prosecutor Luis Moreno-Ocampo.
Bashir was indicted by the International Criminal Court (ICC) for war crimes in Darfur last year. This month the court added genocide to the charges, accusing him of orchestrating murders, rapes, and torture in the troubled western region.
The Sudanese leader himself has skipped this summit in retaliation to Museveni’s absence from his inauguration, according to Sudanese government sources who spoke to Reuters.
Some ICC states including South Africa along with Botswana and Uganda fought for the watered down resolution on ICC, while non-ICC countries such as Libya, Eritrea and Egypt wanted to maintain the hard-line approach.
However, the resolution on the ICC was changed on Tuesday to a more harsher version to the surprise of many observers who followed the summit closely and it remained unclear what happened behind the scenes at the final hours of the summit.
The text said that the summit "reiterates its decision that AU member states shall not cooperate with the ICC in the arrest and surrender of President al-Bashir of the Sudan.
Furthermore, it urged member states to balance their obligations to the ICC and those to the AU.
Last year, South Africa and Botswana publicly dismissed the non-cooperation decision last year at the summit held in Libya and warned that they will arrest Bashir should he sets foot on their territories.
The summit also expressed "concern over the conduct" of the ICC prosecutor and accused him "making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan al-Bashir of the Sudan and other situations in Africa."
The ambiguous reference to "other situations in Africa" in the AU criticism of Ocampo would likely surprise observers given that out of the five cases handled by the ICC, three were referred by the African states themselves to the court for investigation.
The Kenya investigation which commenced this year was initiated by the ICC prosecutor after the government in Nairobi at its highest levels gave the court a green light to do so yet declining to refer it for political reasons.
In 2003, Ivory coast, a non-ICC member, announced their acceptance to the jurisdiction of the court to investigate crimes committed in the country since the events of 19 September 2002 caused by troops mutiny. No investigation has been opened so far.
The summit also decided "to reject for now the request by ICC to open a liaison office to the AU in Addis Ababa". Earlier this month, Judge Sang-Hyun Song, President of the ICC met with the AU Commission Chairperson Jean Ping who reiterated the body’s commitment to end impunity.
But last week, Ping expressed disapproval to the idea of opening the office in Addis Ababa.
"The ICC has no office outside of its headquarters. The issue is why are they only interested in opening an office in Africa, why not in Europe or Asia," Ping told journalists.
On Saturday the AU Commission Chairperson who is a long-time fierce critic of the court, slammed the ICC and said that its prosecutor "does not care" if his actions jeopardize peace in Sudan and reiterated assertions that the Hague tribunal is "bullying" Africa.
NO TRIAL FOR BASHIR OUTSIDE AFRICA
On Tuesday, the AU Chairman, Malawi’s President Bingu wa Mutharika speaking to reporters questioned the legality of ICC jurisdiction over the Darfur case.
The UN Security Council (UNSC) issued resolution 1593 under chapter VII in March 2005 referring the situation in Darfur to the ICC. At the time Tanzania and Benin voted in support of the resolution while Algeria abstained.
"Let us look at the position of the ICC," said Mutharika. Do they really have a right to tell us what to do on this continent? It’s a question. Do they have a right to try Sudan, who’s not a member of ICC? I don’t know."
Mutharika stressed that Bashir will not be tried outside the continent under any circumstances.
"As chairman, I would not sweep the issue of El Bashir under the table,” Mutharika stated, but underscored that Bashir could not and would not be tried outside the African soil.
"We are not condoning impunity and we are not condoning any crimes that may have been committed by anybody, whether he’s a head of state or not, against humanity. But these things need to be proved. So we are asking the United Nations General Assembly to postpone the execution of that arrest warrant for 12 months, during which we will look at the issue and see if the evidence they have corroborates with ours" he said.
Mutharika did not say whether a new commission was to be formed to investigate the charges against Bashir and determine if they merit trial.
The AU final resolution also slammed the "blatant abuse of the principle universal jurisdiction" and called for "immediate termination of all pending indictments". It called on the international community to respect "the immunity of state officials when applying the principle of Universal Jurisdiction".
AFRICAN TRIAL OF BASHIR?
The Panafrican News Agency (PANA) reported that AU leaders deliberated behind closed doors on whether Bashir could stand trial before an African court but said that the proposal was defeated.
A source told PANA that the African leaders advised the Arusha-based African Court of Justice to explore its ability to undertake a war crimes trial or crimes against humanity in Africa.
Some leaders warned their compatriots, who would be indicted in future for rights abuses, including war crimes and genocide, that they would face justice.
"They explored the process of instituting an African trial of President Bashir, but again, we have no mechanism to do that. They had wanted to go the [former Chadian president] Hissene Habre way, but it has taken 10 years to try him (Habre) . This line of discussion was discouraged because it does not deliver justice," the source said.
The AU resolution made no mention of the panel, headed by former south African president Thabo Mbeki, it formed last year to examine among other things the ways of achieving justice in Darfur.
The commission called for a hybrid court with participation of foreign judges to try war crimes suspects and changes to Sudanese laws. It took no position on the ICC warrant except to say that the Hague-based tribunal cannot try all the suspects, effectively supporting its work.
However, since the endorsement of Mbeki’s findings by the AU, no progress has been made on the justice track and it is not clear when implementing the hybrid court proposal would commence. Khartoum gave a cool reception to the proposed court with some officials suggesting it is an infringement on the country’s sovereignty.
The former Egyptian foreign minister Ahmed Maher who was one of the panel members said in an interview last year that the goal of the commission was to find a way out for the Sudanese president from the ICC charges. There was no official reaction from Mbeki though he has reportedly sent a strong worded letter to the Egyptian foreign ministry objecting to the statements made by Maher.
Darfur rebels at the time said that the statement by Maher reflects the true intention of the panel.
A leading Nigerian activist criticized the AU resolution on Bashir.
"Africans want redress for victims, not protection for alleged abusers," said Oby Nwankwo of Nigeria’s Civil Resource Development and Documentation Centre.
"We expect more from our leaders than calls not to cooperate with the arrest of al-Bashir, who is wanted on charges of heinous atrocities in Darfur."
Last May, Amnesty international accused the AU of being complicit in human rights abuses on the continent and must be held accountable for the culture of impunity.
The AU should lead by example, but in certain situations it has become part of the problem,” the rights group said in a report titled “Amnesty International Report 2010: The State of the World’s Human Rights”.