Prosecuting International Crimes in Africa - PULP - University of ...

Politics of international criminal justice 159
called for the reservation of a permanent seat for the Africa coupled with
veto power to protect and safeguard the continent from the perceived neocolonialist
and imperialistic tendencies of its present composition.
4 Conclusion
It is clear from the discussion above that, whereas some of AU’s concerns
regarding the actions of the ICC Prosecutor are legitimate, they do not find
expression in law. This is the reason why some analysts have been quick
to dismiss the arguments as an attempt by the AU to hoodwink the
international community. This piece is a call for a considered reexamination
of some of the original hard-line positions against the AU’s
actions in response to Al Bashir’s indictment. Indeed, the AU has shown
an increasing commitment to addressing serious human rights abuses
perpetrated by non-state actors within its territories. Its regional peace and
security architecture, equipped with a legal mandate to take concrete steps,
including military action in the form of humanitarian intervention, is all
but evidence of this commitment. Africa is the first continent in the world
to legislate on the responsibility to protect, a subject that has mostly been
restricted to theoretical discussion in other jurisdictions.
It is also evident that Africa has since day one had a significant interest
in the establishment of a permanent international criminal court, largely
because of its historical experience of untold atrocities and a postcolonial
era characterised by weak or non-existing institutional structures.
Moreover, three African countries have already taken the first crucial steps
to refer situations to the ICC. It only follows that, rather than being an
attempt to deceive the international community, the AU is genuinely
concerned about how international criminal prosecutions fit into the AU’s
broader peacemaking and peace-building objectives. In fact, regarding Al
Bashir’s case, the AU has not opposed the intended prosecution as such,
but has expressed disquiet about its timing. This concern is rightly based
on conflict resolution concerns and the potential for such warrant to be a
conflict trigger.
Another illustration of good faith on the part of African countries and
the AU at large is their consistency in urging Sudanese authorities to take
concrete steps to improve human rights conditions on the ground, all the
while pressing for a comprehensive peace agreement between the warring
sides. The CPA Agreement, brokered between the North and South under
the auspices of the Intergovernmental Authority on Development (IGAD,
a seven-country regional development organisation) is a clear example of
such commitment. Further, in collaboration with the UN, African
countries have contributed, over recent decades, to the thousands of
peacekeepers in Sudan. Even if extreme action, such as a withdrawal of
ratifications or referrals of one or more African states parties, has not so far
been taken, the damaged relationship between the Court and the AU may