Formed by merging the African Court on Human and People’s Rights and the AU Court of Justice, it will have three sections: general affairs, human rights and international criminal law. Unlike ICC, it will not limit itself to genocide, war crimes and crimes against humanity but will take up cases related to piracy, terrorism, mercenary activity, corruption, money-laundering, human and narcotics trafficking and the illegal exploitation of natural resources.
The demand for Africa-wide criminal court of justice has been there for a long while as many leaders appear to believe that the ICC is bullying Africa. The indictment of Sudan’s President Omar al-Bashir in 2009 on charge of atrocities and rights abuse in Darfur was a turning point.
In 2009, the AU adopted the Sirte Resolution calling for non-cooperation by African ICC member states in the arrest of Bashir. Malawi (during the presidency of the late Bingu wa Mutharika), Chad, Kenya and Djibouti – all ICC state parties – hosted Bashir since the arrest warrant was issued and did not apprehend him.
The AU urged the Security Council that in the interests of peace and security it should defer or postpone legal proceedings against Bashir. They made a similar appeal in the case against the alleged instigators of Kenya’s post-electoral violence in 2008. The appeal evoked no positive response. The cold shouldering angered the African leaders.
The two cases have become “a sticking point” between the AU and the ICC, as Stephen Arthur Lamony, Africa outreach liaison and situations adviser of the Coalition for the ICC told IRIN. The coalition is an umbrella organization of 2,500 civil society organizations in 150 countries.
There are four more Africa centric cases before the International Court and of them three were referred to it by the countries concerned. But the growing feeling in Africa is that the nations of the continent are being singled out for action.
The final draft protocol for the new Africa-wide criminal court was prepared this May when the AU leaders met at the Ethiopian capital, Addis Ababa. Now the summit next month (July) will take up the draft. Originally the heads of state of African nations were scheduled to meet at Malawi but President, Joyce Banda has threatened to arrest Sudan’s president if he decided to attend the meet. This forced the organizing committee to do a quick rejig and allot the summit to Addis Ababa.
Experts view is that the summit may not unveil the new criminal court. It will only mark the beginning of a long process that would require ratification by 15 AU member states. Analysts say the process could take a few years.
IRIN reports the court’s jurisdiction for international crimes will commence after its inception. This means that the court would not trump current cases being considered by the ICC regarding the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, Libya, Kenya and Sudan. Both the AU Peace and Security Council and the office of the prosecutor will be eligible to submit cases.
How the new Africa criminal court will shape up is unclear. So is its relationship with ICC. There is a danger of duplication between the two international criminal courts. In addition there is potential for conflict over jurisdiction. ICC doesn’t deal with regional courts. It has agreements with national courts. So much so, the equation between the African court and ICC will be a new grey area in so far balancing the relationship between the obligation under the Rome Statute and the legal implications of the regional outfit.
