February 23, 2020

AU Commission reacts to civil society support for ICC Bashir case

Following a flurry of media reports indicating that some South African civil society organizations want President Zuma to distance himself from last week’s AU decision to oppose the arrest warrant for President al-Bashir, as well as a poll released yesterday indicating that the general public in some countries is not as opposed to the Bashir indictment as their leaders seem to be, the AU Commission has responded, defending its position.

Interestingly, the preambular paragraph of its response references complaints by International NGOs, conveniently ignoring the dissent of local NGOs. The statement defends against the charge that the decision wasn’t reached according to the AU Rules of Procedure, something that Botswana’s foreign minister claimed after the Summit in Sirte.

It will be interesting to see if counter-claims to this statement come in over the next few days from the various dissenters inside African governments who have signed up to the Rome Statute, and are worried that the AU position will lead them to contravene their legal obligations under the Rome Treaty.

Here is the AU statement in full:

Source: African Union (AU)

Date: 14 Jul 2009

ِAddis Ababa, 14 July 2009 – The Commission of the African Union (AUC) has learned of the statements made by some International Non-Governmental Organisations following the adoption by the African Union Assembly of Heads of State and Government of the decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC) and wishes to state that;

1. In conformity with Rule 18 of the Rules of Procedure of the Assembly of the Union, decisions of the Assembly of the African Union are arrived at by consensus, failing which, by two thirds majority of the Member States eligible to vote.

2. The decision by the Assembly on the Meeting of African States Parties to the Rome Statute of the International Criminal Court was arrived at by Consensus after due consideration by the Executive Council at which a number of amendments were made to the draft decision. At the level of the Assembly, the decision was adopted by consensus with only one opinion to the contrary, which was duly recorded as a reservation.

3. The contents of the decision were arrived on the basis of the recommendations of the meeting of African States Parties to the Rome Statute held on 9 June 2009 and the recommendations made by the Executive Council itself was guided in its decision by recommendation of a Committee of Six that was set up by the Executive Council in Sirte, Libya to resolve some outstanding issues. The decision reflects the consistent position of the AU of unflinching commitment of AU member states to combating impunity and promoting democracy, the rule of law and good governance on the continent as enunciated in the constitutive Act of the Union. It also underlines the need to empower the African Court on Human and Peoples’ Rights to deal with serious crimes of international concern in a manner complementary to national jurisdiction.

4. The decision by the AU Assembly not to cooperate with the ICC pursuant to the provisions of Article 98 of the Rome Statute relating to immunities for the arrest and surrender of President Omar El Bashir of The Sudan is a logical consequence of the stated position of the AU on the manner in which the prosecution against President Bashir has been conducted, the publicity-seeking approach of the ICC Prosecutor, the refusal by the UN Security Council to address the request made by the African Union and other important International groupings for deferment of the indictment against President Bashir of The Sudan, under Article 16 of the Rome Statute of the ICC.

5. The decision bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to an harmonized approach to justice and peace, neither of which should be pursued at the expense of the other. Furthermore, the decision was taken after due evaluation of the situation in Darfur informed by the commitment of Member States to finding a lasting solution to the problem in Darfur with a view to restoring peace, security and stability In The Sudan and the whole region and prevent further displacement and killings in that country.

6. Finally, the AU commission wishes to underscore that the decision on the ICC was taken in conformity with the Rules of Procedure of the Assembly and the Executive Council and was not and could not have been dictated by any one Member State against all the others as implied in some press statements.

7. The AU decision should be received as a very significant pronouncement by the supreme AU decision-making body and a balanced expression of willingness to promote both peace and justice in Darfour and in The Sudan as a whole. It is now incumbent upon the United Nations Security Council to seriously consider the request by the AU for the deferral of the process initiated by the ICC, in accordance with Article 16 of the Rome Statute.

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