AU’s Thumbsdown For The World Court After Taylor’s Made Jail

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african-flagsADDIS ABABA — Africa’s relations with the International Criminal Court (ICC) are in tatters after a special summit of the African Union (AU) resolved that cases against the presidents of Kenya and Sudan should be deferred and that serving heads of state and government should be immune from prosecution.
President Jacob Zuma was one of an estimated 14 African leaders out of a possible 54 who attended the one-day summit in Addis Ababa. The exact turnout was unknown because the organisation does not publicly announce who has come to its summits.
Kenya had pushed for the meeting to be held and President Uhuru Kenyatta was smiling afterwards. The ICC has charged him and his deputy‚ William Ruto‚ with crimes against humanity over the ethnic killings of about 1‚200 people immediately after the December 2007 elections in Kenya.
President Omar al-Bashir of Sudan‚ who has refused to co-operate with the ICC and is wanted for war crimes‚ also attended the summit.
Mr Ruto’s trial at The Hague has already begun‚ although he is free to shuttle to and from the Kenyan capital‚ Nairobi. Mr Kenyatta and Mr Ruto said before their election in March that they would fully co-operate with the ICC but there is little likelihood now that the president of East Africa’s most important country will attend the scheduled opening of his trial on November 12 — if it takes place at all.
Leaders asked Kenya to apply to the United Nations Security Council for a deferral of Mr Kenyatta’s trial. Ethiopian Foreign Minister Tedros Adhanom said if a decision was not made by November 12‚ Mr Kenyatta would not go to The Hague.
“What the summit decided is that President Kenyatta should not appear until the request he has made is actually answered. That’s a united voice and I hope this time there will be a positive response‚” Mr Tedros told reporters‚ alluding to assertions that African appeals to the ICC and the Security Council have not been answered.
The ICC had no public response on Sunday to the hard-nosed AU position. The court has sweeping powers to arrest recalcitrant defendants and witnesses. But it has been mostly silent or passive during the past weeks and shown no stomach so far for a confrontation with the AU.
South Africa played its cards close to its chest before the summit‚ with International Relations and Co-operation Minister Maite Nkoana-Mashabane refusing last week to even hint about the government’s position. But when Mr Zuma was in New York two weeks ago‚ he was critical of the court and its treatment of Mr Kenyatta‚ telling South African journalists it would not be “in keeping” to oblige a president to sit through every day of his trial.
Since the post-election violence in Kenya‚ not a single defendant has been successfully prosecuted for any of the killings.
Before the summit there were unattributed suggestions from African government sources that AU member states who are also ICC members — 34 of them — might withdraw from the court en bloc‚ invoking its alleged bias against African leaders. The court has opened investigations in eight countries and publicly indicted 32 people‚ all of them African.
A resolution calling for a walkout failed to transpire at the summit and diplomats said that outcome was never on the cards. But Mr Tedros said the threat was “still on the table”.
The summit’s final declaration called for immunity of serving heads of state and government‚ saying their absence for court appearances “could undermine the sovereignty‚ stability and peace in that country and in other member states.…”
This clause will raise eyebrows because of fears that African presidents who face prosecution will prolong their terms of office for as long as possible.
The AU denies it wants immunity for African leaders‚ but after this summit many human rights groups will beg to differ and side with Archbishop Desmond Tutu.
“The ICC is the world’s first and only global court to adjudicate crimes against humanity‚” the archbishop said last week. “But leaders of Sudan and Kenya‚ who have inflicted terror and fear across their countries‚ are trying to drag Africa out of the ICC‚ allowing them freedom to kill‚ rape and inspire hatred without consequence.”
Former United Nations secretary-general Kofi Annan also spoke out against a pullout: “If they fight the ICC‚ vote against the ICC‚ withdraw their cases‚ it will be a badge of shame for each and every one of them and for their countries.”
About 142 African human rights and activist groups called on the leaders to support the Hague-based court. “We believe any withdrawal from the ICC would send the wrong signal about Africa’s commitment to protect and promote human rights and reject impunity‚” the organisations said on Monday in a letter to AU foreign ministers.
Mr Annan said the court was a last resort after African governments had failed to deliver justice for heinous crimes against humanity. And he rejected the criticism that some have levied‚ notably in Kenya‚ that ICC trials could undermine peace and stability.
“On a continent that has experienced deadly conflict‚ gross violations of human rights‚ even genocide‚ I am surprised to hear critics ask whether the pursuit of justice might obstruct the search for peace‚” Mr Annan said.
AU protocol sources said 14 heads of state were present from Uganda‚ Ethiopia‚ Somalia‚ Kenya‚ Sudan‚ Djibouti‚ Tanzania‚ Rwanda‚ Namibia‚ South Africa‚ Zimbabwe‚ Gambia‚ Côte d’Ivoire and Nigeria. The leaders agreed to reconvene at the end of next month to discuss progress.

FromElissa Jobson African Union Correspondent, The Herald

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By BERNARD NAMUNANE, Daily Nation
A clash between French-speaking and English-speaking African countries sunk a move to withdraw Africa from the International Criminal Court in Addis Ababa at the weekend.

A combination of factors — including a division between Anglophone and Francophone countries and endless conflicts on the continent — put paid to efforts by some countries to have the African Union announce its withdrawal from the International Criminal Court.

They instead issued five demands to the ICC and its guarantor, the United Nations Security Council, to meet and pave the way for new relations with the court on crimes against humanity and high level impunity.

They also warned that should their list of demands not be met by November 12, the date set for President Kenyatta’s trial at The Hague, they will convene another Special AU Summit to make far-reaching resolutions. (VIDEO: Uhuru urged to skip ICC trial)

politriccksSources at the AU executive council and the Heads of State meeting said that Kenya, Uganda, Rwanda, Ghana, South Africa, Zimbabwe, Sudan, Ethiopia, Nigeria, Malawi, Tanzania and Algeria pushed for the immediate declaration of the withdrawal from the Rome Statute. Algeria is a French-speaking nation and is not a member of the ICC.

Kenya’s delegation at the executive council meeting, led by Foreign Secretary Amina Mohamed and Attorney-General Githu Muigai was said to have reminded their colleagues that what ICC was doing to Kenya could be done to any African country in future.

This was the reason, they said, decisions should be taken to stop the ICC. They were aghast that the ICC had failed to respect elected African presidents and time had come for the continent to flex its muscle by renouncing its ICC membership.

It was said that they were disturbed by remarks made by the lead prosecutor in the Ruto case, Mr Anton Styneberg, that Kenya could appoint someone else to play the Deputy President’s role to allow the substantive holder of the position to be tried without interruption.

The remark, they said, bordered on lack of respect for elected African leaders.

However, Francophone countries were opposed to the proposal for mass withdrawal, saying, the AU should pursue their concerns with the UN Security Council and the State Parties forum.

Senegal, Côte d’Ivoire, the Gambia, Mali and Burkina Faso were unhappy with the slow pace at which the AU has been moving to resolve conflicts in Africa.

Joined by Botswana, they argued that while they were in agreement that the ICC should not prosecute sitting presidents, Africa — which has a long list of conflicts — should not be seen to be taking a move that will create room for such dark acts. They cited civil war in Eastern Congo, the Boko Haram conflict in Nigeria and events in Mali where the AU failed to act on time.

The Francophone countries were further opposed to the proposal that all AU members who wish to invite the ICC to investigate cases in their countries should first consult the union. This, Senegal and Côte d’Ivoire argued, would deny countries their right to solve internal problems.

It was also understood that Côte d’Ivoire and Sudan, which have cases at the ICC, wanted their position in the final statement from the Special AU Summit to be strongly reflected as was Kenya’s. Their delegations argued that while the Kenya case was urgent, their own situations also merited being included higher up in the resolutions.

Perhaps, this was the reason AU chairman Hailemariam Dessalegn, also Ethiopia’s Prime Minister, said in his opening remarks: “It should be underscored that our goal is not and should not be a crusade against the ICC, but a solemn call for the organisation to take Africa’s concerns seriously.”

The Special Summit apparently had attracted the attention of the UN and the ICC.

Sources at yesterday’s meeting said UN Secretary-General Ban Ki-moon called each of the presidents in attendance, seeking to persuade them against resolving to withdraw from the ICC.

Mr Ban promised to use his position to amend the Rome Statute charter to bring on board the concerns that were being raised by the continent.

It is understood that President Robert Mugabe of Zimbabwe, a strong supporter of severing links with The Hague, reminded the UN boss that he has “no teeth” to push for the amendments.

CONSIDERING DEFERMENT

AU Commission chairperson Nkosazana Dlamini-Zumba, in her welcoming remarks, said:

“I met ICC prosecutor Fatou Bensouda early in the week and expressed to her the concern that the UN Security Council and the ICC should work with us to enable the elected leadership of Kenya to fulfil their constitutional obligations by urgently considering deferment of the ICC proceedings against the President and Vice-President of Kenya in accordance with Article 16 of the Rome Statute.”

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The International Criminal Court (ICC) is nervously waiting to see whether African leaders meeting today in an extraordinary sessions of the African Union (AU), will decide to carry out their threat to walk out en masse from the world court. The leaders begun a two-day meeting Friday in the Ethiopian capital Addis Ababa to discuss the continent’s relationship with the ICC among other issues.

The two-day summit is expected to be attended by Sudanese President Omar al Bashir, who has been indicted by the ICC on war crimes charges and genocide in Sudan’s war-torn Darfur. The AU has demanded that proceedings against Kenyan President Uhuru Kenyatta linked to the 2007-2008 post-election violence be dropped. Kenyatta faces crimes against humanity along with his Vice President William Ruto, who is already on trial at The Hague, Netherlands.

The meeting is also expected to discuss a possible mass withdrawal from the ICC, although leading African figures, including Kofi Annan, the former UN secretary-general, and retired Archbishop Desmond Tutu, have urged African leaders not to withdraw support.  Ethiopia’s foreign minister slammed the ICC for its “unfair” and “totally unacceptable” treatment of Africa. “The manner in which the Court has been operating, particularly its unfair treatment of Africa and Africans, leaves much to be desired,” Tedros Adhanom Ghebreyesus told ministers and delegates at the opening of the meeting.

Many African countries, whose leaders have complained that the ICC only targets Africans, are signatories to the Rome Statute which set the stage for the formation of the court. Thirty-two African states are signatories to the Rome Statute. The summit comes as Kenyatta launches a fresh bid to have the ICC case against him stopped. He cited “serious, sustained and wide-ranging abuse on the process of the court carried out by” three witnesses against him in collaboration with the court’s investigators, according to Kenya’s Daily Nation newspaper.

Kenyatta alleges his witnesses have been intimidated or interfered with to change their testimony “for reward”, the newspaper said. In an application made late on Thursday, the daily said, his defence team wants the judges to either stop the case permanently or hold a hearing where the issue will be resolved conclusively before his trial begins on November 12.

Kenyatta’s lawyers have said that if it is found that those involved abused the court process, “it would necessitate a permanent stay of the proceedings”. In July two witnesses who were due to testify in Kenyatta’s trial withdrew over security concerns, the ICC said. The court also dropped a third witness’s evidence, saying it did not consider it necessary. ICC chief prosecutor Fatou Bensouda has previously accused the Kenyan government of not protecting witnesses.