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

Implementation of the Rome Statute in Malawi and Zambia 281
with the ICC in the execution of the warrant for the arrest of Al Bashir. 24
The precise legal implications of the AU’s decision, especially in so far as
it affects the obligations of state parties to the Rome Statute, are clearly
beyond the scope of the present chapter. Suffice it to note that there is an
evident disagreement among AU members themselves on whether to cooperate
with the ICC on the Al Bashir Warrant or not. 25 This
disagreement has been manifested by statements made on behalf of other
countries, for example, South Africa and Botswana, who have indicated
that they would, in effect, execute the warrant should Al Bashir be within
their territories. 26 This disagreement by African states, this chapter argues,
serves to confirm the fact that African countries are duly cognisant of the
existence of the ICC and the obligations that the Rome Statute creates for
them. The refusal by some states to blindly follow the AU resolution, it is
further argued, demonstrates the willingness of some African countries to
respect their obligations under the Rome Statute. 27
Although the indictment of the Sudanese President has invariably
inflamed tensions between African countries and the ICC, it is also
important to note that the ICC remains highly relevant to Africa. Several
reasons have been proffered that justify the relevance of the ICC to Africa,
among them are the following: 28 firstly, Africa has had a disproportionate
share of conflicts which has invariably also set the stage for the commission
of some of the crimes that the Rome Statute addresses. The three situations
that have been referred to the ICC by Uganda, DRC and CAR are perfect
examples of some of the violations that accompany most conflicts in
Africa. The referrals on Uganda and the DRC also exemplify the huge cost
that impunity has made the African continent bear. Secondly, and related
to the first point, the perpetual prevalence of conflict in some African
24 Decision on the meeting of African state parties to the Rome Statute of the
International Criminal Court (ICC) Doc Assembly/AU/13 (XIII) http://www.africaunion.org/root/AU/Conferences/2009/july/summit/decisions/
ASSEMBLY%20AU%20DEC%20243%20-%20267%20(XIII)%20_E.PDF (accessed
16 March 2010). Strangely, in 2005 the Prosecutor reported to the Security Council that
the Court had, in principle, reached a co-operation agreement with the AU and the
agreement had been finalised and only awaited execution – Second Report of the
Prosecutor of the International Criminal Court, Mr Luis Moreno Ocampo, to the
Security Council Pursuant to UNSC 1593 (2005) 13 December 2005, http://www.icccpi.int/NR/rdonlyres/2CFC1123-B4DF-4FEB-BEF4-52E0CAC8AA79/0/
LMO_UNSC_ReportB_En.pdf (accessed 16 March 2010).
25
There seems to be a measure of ambivalence in the AU’s position with respect to the
ICC. Olubguo notes that while one of the key commitments in the AU’s Strategic Plan
is the ratification of the Rome Statute by all African countries, very little has been done
towards the attainment of this goal. As a matter of fact there is no department within
the AU that coordinates the drive towards ratification – BC Olugbuo (n 7 above) 128.
26 See, eg, BR Dinokopila ‘The prosecution and punishment of international crimes in
Botswana’ (2009) 7 Journal of International Criminal Justice 1077-1085.
27 It was reported that Al Bashir was unable to travel to South Africa for the inauguration
of President Jacob Zuma because South Africa had indicated that it would honour its
obligations under the Rome Statute and execute the warrant for the arrest of Al Bashir
if he had travelled to South Africa; see Institute for Security Studies ‘South Africa
reaffirms its support for the ICC’ http://www.polity.org.za/article/south-africareaffirms-its-support-for-the-icc-2009-09-09
(accessed 16 March 2010).
28 AMICC (n 18 above).