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

Positive complementarity and the fights against impunity in Africa 269
abate soon as evidenced by recent events. During the Fifth Ordinary
Session of the Assembly of Heads of State and Governments of the AU
held from 25 to 27 July 2010 in Kampala, the AU in a resolution expressed
its disappointment that the UN Security Council had not acted upon its
request to defer the proceedings initiated against Omar Al Bashir in
accordance with article 16 of the Rome Statute which allows the Security
Council to defer cases for one year. 136 The AU further reiterated its
decision that AU member states shall not co-operate with the ICC in the
arrest and surrender of Omar Al Bashir. 137 Member states of AU were
urged to balance, where applicable, their obligations to the AU with their
obligations to the ICC. 138 They were also required to speak with one voice
to ensure that the proposed amendment to article 16 of the Rome Statute
which would allow the UN General Assembly to take over the power of
the Security Council to defer cases for one year in cases where the Security
Council has failed to take a decision within a specified time-frame. 139
Furthermore, the AU rejected, in the interim, the request by the ICC to
open a liaison office to the AU in Addis Ababa, Ethiopia. 140
The rejection of the establishment of an ICC liaison office is a missed
opportunity as this would have been a good opportunity for consensus
building between the ICC and the AU. 141 The relationship between the
ICC and the AU has degenerated due to a lack of trust and effective
communication between the two institutions and the misunderstanding of
the role of the ICC in the fight against impunity. The OTP needs to
continue the positive relationship with the AUHIP to ensure that efforts
aimed at accountability in Sudan are not backtracked. It is also evident that
the involvement of the ICC in the Darfur conflict may have contributed to
the changes going on currently in the Sudanese legal system. Whether
these changes will lead to the prosecution of those responsible for
international crimes in Darfur is something that has to be monitored
closely. The OTP is encouraged to make effective use of positive
complementarity to ensure that there is a synergy of collaboration between
all actors working for accountability in Sudan. The use of positive
complementarity will not limit the statutory authority of the ICC to
investigate and to prosecute international crimes where the court has
jurisdiction and where national governments fail to undertake genuine
136 Para 4 AU Decision on the Progress Report of the Commission on the Implementation
of Decision Assembly/AU/Dec 270 (XIV) on the Second Ministerial Meeting on the
Rome Statute of the International Criminal Court Doc Assembly/AU/10(XV), http://
www.africa-union.org/root/UA/Conferences/2010/juillet/Summit_2010_b/doc/
DECISIONS/Assembly%20AU%20Dec%20289-330%20(XV)%20_E.pdf (accessed 19
August 2010) (AU ICC Decision).
137 Para 5 AU ICC Decision.
138 Para 6 AU ICC Decision.
139 Para 7 AU ICC Decision.
140 Para 8 AU ICC Decision.
141 D Akande et al ‘An African expert study on the African Union concerns about article 16
of the Rome Statute of the ICC’ Institute for Security Studies Policy Paper (2010) 23.