African Union (orthographic projection)" by Heraldry (Source: Wikimedia - Creative Commons License)
In June, the African Union granted sitting leaders of African countries immunity from prosecution for crimes against humanity, genocide, and war crimes by the African Court of Justice and Human Rights. The 23rd Assembly, composed of leaders of each African country, voted to adopt the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Within this newly adopted Protocol, Article 46A bis states,“No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”
The grant of immunity is likely in response to what many African nations feel is the International Criminal Court prosecuting African countries at a disproportionate rate than others.[1] Currently, there are twenty-one cases before the ICC and all twenty-one arise out of eight African countries. Of those eight countries, five of them asked the ICC to investigate their situations, two were referred to the ICC through U.N. Security Council Resolutions, and only one of the countries (Kenya) came under investigation through the ICC’s own initiative. Three of these current cases involve sitting heads of state. The president of Kenya, Uhuru Kenyatta; the deputy president of Kenya, William S. Ruto, and the president of Sudan, Omar al-Bashir, are all facing charges at the ICC. Additionally, Laurent Gbago, the former president of Côte d’Ivoire, is also facing charges.
This Protocol does not grant immunity to sitting African leaders in any other court than the African Court of Justice and Human Rights; the International Criminal Court would still be able to prosecute such crimes, as the founding statute of the ICC clearly disallows immunity based on official capacity.[2] Regardless, international human rights workers worry that the AU’s grant of immunity in a regional court will shine a poor light on African nations and their quest for ending impunity.
Recently, 141 different civil service and international organizations have signed a declaration asking African leaders to reject the adopted protocol. This declaration argues that the protocol “risks encouraging those accused of the crimes to cling to their positions in order to avoid facing the law.”[3] In a separate open letter, Amnesty International believes that the immunity creates “one rule for those in positions of power and another rule for the masses.”[4] It reminds African leaders that most of them also subscribed to the statute of the ICC and the ICC’s desire to end impunity and punish those responsible for serious violations of human rights.[5]
Despite the grant of immunity being called “retrogressive,”[6] a “backward step,”[7] and “a let down for victims of serious violations of human rights,”[8] African leaders continue on towards attempting to ratify the adopted protocols. On August 25 and 26, the African Union held a two-day meeting in Nairobi where they discussed how to speed up ratification of African Union decisions and treaties among East African countries.[9]
Although this meeting did not result in any immediate ratification of decisions or protocols, it also did not result in a single statement acknowledging that the international community is concerned with the African Union’s actions.[10] It merely suggested certain ways in which the ratification process could be better facilitated.[11] As this issue has only arisen within the past couple months, the international law community remains constantly interested in its development and urges the leaders of African countries to remain steadfastly devoted to ending impunity and securing justice for the victims of serious human rights violations.
[1] Adam Nossiter & Marlise Simons, African Leaders Grant Themselves Immunity in Proposed Court, N.Y. Times, July 2, 2014, http://www.nytimes.com/2014/07/03/world/africa/african-leaders-grant-themselves-immunity-in-proposed-court.html?_r=0.
[2] Rome Statute of the International Criminal Court, art. 27, 37 I.L.M. 1002 (1998), 2187 U.N.T.S. 90.
[3] Declaration, Call for African States to Reject Immunity for Serious Crimes by African Civil Society Organisations and International Organisations with a Presence in Africa drafted by Malawi’s Center for Human Rights and Rehabilitation (August 2014), available at http://www.hrw.org/sites/default/files/related_material/Group%20Declaration%20on%20Immunity%20and%20African%20Court%20August%202014.pdf.
[4] Open Letter to the Heads of State and Government of the African Union from Salil Shetty, Secretary General of Amnesty International, available at http://www.amnesty.org/en/library/asset/AFR01/012/2014/en/5984bd20-8d1f-4c36-b892-41d054a7d9ee/afr010122014en.pdf.
[5] Id.
[6] Declaration, supra note 3.
[7] African Union protects leaders from prosecution for genocide, war crimes, Amnesty International, available at http://www.amnesty.org.au/news/comments/34947/.
[8] Id.
[9] Id.
[10] See id.
[11] Id.