Africa’s immunity controversy

By Chidi Anselm Odinkalu

Systems must be put in place to ensure political accountability and minimize double standards

The decision by the African Union (AU), after more than five years of preparation, to confer jurisdiction over international crimes, such as genocide, crimes against humanity, and war crimes, on the African Court of Justice and Human Rights has inspired considerable controversy. Is there any merit to the criticism?

Opponents of the AU’s decision argue that there is no similar regional human-rights court elsewhere, and that the Rome Statute of the International Criminal Court does not account for the possibility of complementary regional systems. But “it has not been done before” is never an adequate reason not to try something new, particularly given that the ICC’s statute is not an unassailable authority of international law on accountability. In fact, the United Nations Charter explicitly authorizes “the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action.”

Another widespread criticism is that Africa lacks the capacity to try international crimes. But the notion that Africa cannot take responsibility for holding accountable Africans who have committed atrocities is patronising, at best. Capacity is not a static condition. With a strong commitment, any country or institution can build it.

The only legitimate concern over the AU’s decision is the motive behind it. It has been suggested that Africa’s rulers are concerned less with holding accountable those who have committed international crimes than with protecting themselves from prosecution.

It is important to note that the extension of jurisdiction to the new court did not emerge from the desire to block the ICC in Africa. The idea arose in 2004, when the continent, then very supportive of the ICC, began grappling with how to try the former Chadian dictator Hissène Habré.

But a lot can change in a decade. Skeptics of the AU’s motives focus on Article 46A (bis) in the amendment to the court’s statute, which prohibits the prosecution of “any serving AU head of state or government…or other senior state officials based on their functions, during their tenure of office.” In assessing the motives behind the amendment, these two categories of officials should be treated separately.

The classification “senior state officials” is immediately problematic, owing to its ambiguity in terms of scope and function. Indeed, the amendment not only lacks a clear definition of who belongs in this category; it also fails to identify who will make such decisions. The only hope for offsetting this fundamental shortcoming is that the court exercises sound judgment in individual cases.

The prohibition on prosecuting sitting heads of state is more complex. Of course, nobody, regardless of their position, should be shielded from answering for international crimes. But the question of how to manage cases against active government leaders remains unsettled in international law.

The International Court of Justice affirms that heads of state and foreign ministers have “functional immunity” attached to their office. But the ICC statute contains three contradictory provisions in Articles 27(1), 89(1), and 98(1). In particular, Article 89(1) entitles member states to comply with requests for arrest and surrender only in accordance with “the procedure under their national law.” While some countries’ constitutions – like that of Kenya – deny immunity to a president charged with international crimes, most do not.

The issue is complicated further by practical political constraints. As Ellen Lutz and Caitlin Reiger have pointed out, “the waxing and waning of political fortunes still dominates the extent to which former leaders are held judicially accountable for their crimes at all.” A leader who can win an election, for example, is unlikely to be exposed to prosecution in any court, whether in The Hague or in Arusha, Tanzania.

More broadly, there is a clear double standard in terms of who is charged with international crimes – a discrepancy that extends to advocates of accountability for mass atrocities. For example, the usually vocal advocacy community has failed to respond to credible allegations that the United States and other Western powers are putting pressure on the ICC, to prevent a war-crimes probe of Israel’s operation in the Gaza Strip.

Before claiming that the ICC alone should be responsible for prosecuting cases against sitting heads of state, systems must be put in place to ensure political accountability and minimize double standards. Otherwise, the debate over immunity for sitting African leaders risks becoming a debate about securing regime change by external judicial fiat. That is dangerous territory.

On balance, the African court’s amended protocol is a positive step. Indeed, African leaders’ affirmation that those who commit serious international crimes must be brought to account represents genuine progress. The protocol’s flaws can be smoothed over with imaginative application of the law. Critics should give it time to be tested – and, if necessary, amended – before they condemn it.

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Chidi Anselm Odinkalu is Senior Legal Officer for the Africa Program of the Open Society Justice Initiative.