posted on Thu 22 Sep 2016 5:28 PM
Informal Interactive Discussion with the AU on the ICC

Tomorrow afternoon, Council members will hold an informal interactive discussion with the AU Open-Ended Committee on the ICC (“the Committee”). The AU delegation will be led by the Ethiopian Foreign Minister, Tedros Ghebreyesus, accompanied by Algeria, Burundi, Kenya, Nigeria, South Africa, Sudan and Uganda at ministerial level.

This meeting stems from a request made by the AU Commission on 8 February for the Council to meet with the Committee in March 2016. The letter containing the request emphasises that the AU Assembly created the Committee in order to engage in dialogue over issues relating to the AU’s relationship with the ICC (S/2016/173). These include the AU’s request that the Council defer the ICC proceedings against Sudanese President Omar Al Bashir, in accordance with Article 16 of the ICC Statue, and that it defer or terminate the ICC proceedings against Kenyan Deputy President Samoei Ruto. (Subsequent to the submission of the letter, an ICC Trial Chamber terminated proceedings against Ruto on 5 April 2016, due to lack of sufficient evidence). The letter was drafted in the context of a view in many African countries that the ICC is overly and discriminatorily focused on African situations, and particularly the prosecution of African leaders. It maintains that it is imperative that African leaders are “not distracted with incessant cases before the ICC to the detriment and threat of instability to our countries and our dear continent”, given that Africa is grappling with many conflicts and a resurgence of terrorist activities. The letter expresses regret over the lack of Council action on deferrals thus far.

Indeed, the Council has never exercised its right to defer proceedings under article 16. It has repeatedly refused to consider a deferral in the case of Al Bashir, although it has also refrained from taking action to press member states to execute the ICC arrest warrant against him, despite repeated requests from the ICC Prosecutor in this regard, and findings of non-cooperation by the Court against Sudan and other countries that have hosted him without extraditing him to the ICC. (Most recently, on 11 July, the ICC decided that Uganda and Djibouti, both state parties to the Rome Statute, had not complied with the Court’s request to arrest Bashir and referred the issue to the Security Council).

Since 2011, Kenya has urged the Council to defer the ICC cases against Kenyan President Uhuru Kenyatta and Ruto but was told several times by Council members that no action would be taken. Following the 21 September 2013 terrorist attack in Nairobi, the AU and the great majority of its members renewed calls for a deferral. On 15 November 2013, Morocco, Rwanda, and Togo tabled a draft resolution in the Council for deferral of the Kenyan cases; however, it failed to be adopted, receiving seven votes in favour and eight abstentions (S/2013/660).

The issue of the AU’s relationship with the ICC remains a delicate one for Council members. On 23 March, the Council met under “any other business” to discuss its response to the AU letter concerning the proposed meeting. Despite unease from some Council members about engaging on this issue, Council members tentatively agreed to meet with the Committee (S/2016/336).

After the Committee postponed two planned visits to New York in March and June, on 1 August the AU requested that a meeting with the Council be held between 18-25 September. The President of the Council for September, New Zealand, proposed that due to time constraints, the Council President meet with Ghebreyesus on behalf of the Council. However, the African members of the Council insisted that a meeting be held, as was previously agreed, due to the importance of the issue for African member states. China, France and Russia supported the African position.

There have been several ICC-related developments since the AU first requested the meeting. The Open-Ended Committee met on 11 April, and decided that African countries will withdraw from the ICC Statute unless amendments to the Statute proposed by African countries are agreed upon in the coming ICC Assembly of States Parties meeting in November. These amendments include immunity from prosecution for incumbent heads of state and senior government officials; recognition in the Statute of the primacy of African judicial systems and AU institutions; and apparently, a greater role for the Council in deferral of investigations initiated by the ICC Prosecutor.

Regarding the ICC’s work on Kenya, in addition to the termination of the Ruto case, the charges against Kenyatta were also terminated by the Court on 13 March 2015, due to a lack of evidence. Nevertheless, on 19 September the Court found that Kenya had failed to comply with its obligations to cooperate with the ICC in relation to the Kenyatta case in a manner that prevented the Court from exercising its functions and powers under the Statute. The Court decided to refer this matter to the Assembly of States Parties, deeming it the best forum “for the purpose of fostering cooperation more broadly for the sake of any ongoing and/or future investigations and proceedings in the Kenyan situation”. It should be noted that despite the termination of these high profile Kenyan cases, they could be reopened by the Prosecutor in the future if further evidence is found.

The issues of the African amendments to the ICC Statute, the looming threat of African states withdrawing from the ICC Statute, and the role of the Council in deferring situations from the ICC are all likely to arise during the meeting. A particular point of interest for Council members will be gauging whether and how the proposed amendments to the Statute touch upon the role of the Council with respect to the deferral of cases initiated by the Prosecutor. It is noteworthy that, although France and the UK are the only P5 members to have ratified the Rome Statute, all of the P5 participated in the negotiations over the ICC Statute, where the role given to the Council in the Statute was one of the major points of contention. They are expected to be heavily involved- even if behind the scenes – in negotiations on any proposed amendment to the Statute that touches upon the role of the Council. At this point, however, it appears that Council members will be primarily focused on ascertaining the position of the African states through their interaction with the Committee.

One further point of discussion may be the cooperation of UN peacekeeping missions with the ICC. Language on such cooperation is already found in the mandates of the missions in the Central African Republic, the Democratic Republic of the Congo and Mali; however, this issue became controversial when the 2014 draft Action Plan of the ICC rapporteur on arrest strategies recommended that “[M]andates of UN peacekeeping forces…include assistance for the enforcement of arrest warrants, when appropriate” (ICC-ASP/13/29/Add.1). This recommendation became a matter of contention in the Assembly of State Parties and was taken out of the 2015 draft Action Plan (ICC-ASP/14/26/Add.1).

The AU Peace and Security Council also discussed this matter on 20 June, taking the view that the inclusion of language in peacekeeping mandates to assist in the enforcement of ICC arrest warrants will affect the neutrality and impartiality of UN-mandated peacekeeping missions and undermine the ability of member states of the UN to contribute troops to such missions. It therefore decided to direct African members who are party to the ICC Statute to engage on this issue with the Council (PSC/PR/COMM.(DCVI)).

Postscript: The meeting was cancelled apparently because the AU Ministers were unhappy with the level of attendance from Security Council members. It seems only two members (Egypt and New Zealand) were going to be represented at permanent representative level.