African Union now officially naked before the world & Darfuris

By Wasil Ali*

July 19, 2009 (WASHINGTON) — The African Union (AU) circus that took place in Libya this month is yet another example of why Africa remains the world’s poorest and most underdeveloped continent with the worst human right records.

There are so many aspects of the AU summit that exposes the true nature of the African leadership in place today, and the mentality that prevails among them that kills every hope of any real progress in the continent’s fate in the foreseen future.

Yet weeks after all the mess that the world has witnessed in Sirte, the AU issues a statement with the purpose of trying to convince us that the decisions were taken in full transparency and in line with the body’s rules and procedures without pressure from any single party, namely Libya.

Nonetheless, we will go through the facts that will help the reader understand how and why the term “misleading” is an understatement of the AU’s press release defending the events that occurred at the summit.

The AU Chairperson’s CV & Background

– The elected chairperson of the AU Muammar al-Gaddafi C.V. contains a record of assuming responsibility to bombing two civilian airplanes and a discotheque killing hundreds of people. It is also an established fact that Gaddafi has been a major financer of several terrorist organizations and activities.

– During his visit to the AU headquarters in Addis Ababa last February, Al-Gaddafi defended the Somali pirates who terrorized naval vessels in the Red Sea. He described it as “self defense…. against the greedy Western nations.”

AU Summit atmosphere and Gaddafi intimidation

– The Libyan leader has invited the controversial Iranian president Mahmoud AhmediNajad without consulting the other AU members to their own dismay. One West African diplomat told Agence France Presse (AFP) that “It’s a little strange to invite him [AhmediNajad], unless you consider who made the invitation,”.

– During the preliminary ministerial AU meetings days before the summit, Gaddafi threatened to use the two-thirds rule if he does not receive consensus on his unpopular African government initiative. He said, “We need to resolve this, even if we have to take it to a vote… if two thirds agree, the remaining third must respect the decision of the majority”.

– The Libyan leader, deeply concerned about his African government proposal, walked into the AU foreign ministers meetings in defiance of all political and protocol norms to the point where even Commissioner Ping became irritated.

– Gaddafi has also twice stormed out of the conference room upset that his peers were challenging his views on African government.

Non-cooperation with the ICC by consensus?

– AU Commissioner Ping told reporters at the summit that there would be no “dramatic or binding conclusions” for African ICC signatories. It is truly amazing that Ping did not see the draft resolution coming despite his position at the AU.

– The ICC signatories held a conference in Addis Ababa last month to discuss de-ratifying the Rome Statute. Libya was one of the main countries pushing for a mass withdrawal. However, Libya along with other non-signatories were barred from the meetings. As such, the Libyans could not interfere in their deliberations and the proposal failed to see the light.

– It is undisputed that the overwhelming majority of African countries were very unenthusiastic about the Libyan proposals of the African government and the ICC non-cooperation yet they ended up being adopted. It is interesting to see how African figures frequently speak in a paranoid manner about “Western neo-colonialism” plots. Yet this month the African leaders have unconsciously fell victims to the Libyan form of colonialism when they accepted resolutions under pressure from Gaddafi.

– How could the AU claim that consensus was reached on the ICC resolution when they admitted in their own statement that there was “one opinion to the contrary”?

– Chad and Botswana have verbally stated their unequivocal commitment to the Rome Statute. Uganda took a practical step by politely asking Bashir not to attend a summit in Kampala. South Africa may also soon follow their footsteps. So where exactly is the consensus that the AU is talking about?

Legal aspects of the AU decision on ICC

– It is inconceivable that a regional body would ask its sovereign members to dishonor the agreements they signed and ratified through a lengthy process that went through the legislative assemblies. Is the executive branch allowed to overrule international treaty obligations endorsed by the legislative branch? Who has the power to order the arrest of an individual in one of those countries? Is it the government or the judicial branch? In the case of South Africa for example is president Jacob Zuma allowed to block a judge’s order to apprehend Bashir if he was to visit?

– The Rome Statute is a treaty that can only be accepted by a state in whole and not partially. Article (120) of the Rome Statute clearly states that “no reservations may be made to this Statute”.

– Article (98) of the Rome Statute relating to immunities referred to in the AU resolution is irrelevant to the case of Bashir. The International Court of Justice (ICJ) ruling in case of the Congo vs. Belgium in 2000 established that there are certain exceptions to the principle of immunity where an incumbent “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR)….and the future International Criminal Court (ICC)”.

– By trying to dishonor international treaties, African countries are entering into a dangerous territory that could set a precedent for others to use against them. If it was that simple, East African nations for example could have ignored the Nile Water Agreement of 1929, which effectively gives Egypt veto power over any projects that could affect its share of the water. Even though the agreement was signed by Britain on behalf of its East African colonies, it is still binding to them.

Ironic

– The AU summit calls on the UNSC to impose a no-fly zone and a sea blockage on Eritrea but at the same time wants to punish the council for not freezing the ICC arrest warrant against Bashir.

– While the summit was taking place in Libya, the Kenyan Justice Minister signed a memorandum of understanding at The Hague with the ICC prosecutor, stating that his government will refer the post-elections violence cases to the ICC if the parliament does not establish a local court by specified date.

– Last year Senegalese president announced that he told Bashir that his country is a party to the ICC and they cannot “make an exception” or offer him refuge. Somehow, Senegal later became the leading country trying to get its peers to withdraw from the ICC at the Addis Ababa meeting and a month later to accept the Libyan draft resolution on non-cooperation with the ICC.

– A day before the resolution, Ghana’s Foreign Minister Muhammad Mumuni told reporters that his country disagrees with the Libyan proposal. “For us in Ghana there is absolutely no equivocation at all about our acceptance and respect for the jurisdiction, the integrity and high honor of dignity of the ICC,” he said. A day later Mumuni had a change of heart and approved of the AU resolution saying that the UN Security Council’s failure to consider the suspending Bashir’s indictment amounted to a “slap” to Africa.

– South Africa a superpower in the continent and an established democracy acted more like an autocratic, third world nation. Last May, South Africa has publicly warned Bashir about coming to Zuma’s inauguration or he would face arrest. At the summit, South African delegation said nothing about their legal obligations. Did that commitment disappear overnight or were they too scared to confront Gaddafi?

– President Zuma knows more than anyone else about the dangers of political interference in judicial affairs. It was a South African judge that found former president Thabo Mbeki guilty of colluding with the prosecutors to frame Zuma on corruption charges. Yet in Libya, Zuma had effectively threw his own laws that cleared his name in the past under the bus.

– Mbeki has been extremely opposed to the Libyan backed ICC resolution and lobbied against it saying it undermines the work of his panel, which of course is very true. The AU has now clearly demonstrated that it is more interested in protecting a fellow president from prosecution rather than bringing justice to Darfuris. This has totally defeated the purpose of the Mbeki panel and its credibility is now very much in question.

– The AU never made any mention of the ICC prosecution of rebel leaders who killed their own troops in Darfur. When the attack on the AU soldiers took place, the AU Commissioner for Peace and Security Said Djinnit said that members states “will not rest until they (the perpetrators) are found out and brought to swift justice,”. When one of the suspected rebel commanders appeared at the ICC, the AU maintained silence likely for fear of giving credibility to the court angering Sudan and its allies.

– The AU statement to defend the ICC decision makes a first-time reference to empowering the “African Court on Human and Peoples’ Rights to deal with serious crimes of international concern in a manner complementary to national jurisdiction”. Perhaps the AU needs to be reminded that it was Sudan itself that has rejected the special Darfur tribunal proposed by Nigeria in 2005. Moreover it is agreed that Sudan is not serious about conducting any credible prosecutions on Darfur crimes. A year ago, Sudan said it will try militia leader Ali Kushayb. To date no such trial took place. Sudan has even rejected the idea of hybrid courts consisting of African judges.

All the African leaders who talk about being unfairly trageted by the court fail to mention that they are party to bringing the case before the ICC.

– UN Security Council Resolution 1564 which established an international commission of inquiry gained the blessing of two African countries sitting on the council at the time, Angola and Benin while Algeria abstained.

– The five member International Commission of Inquiry on Darfur consisted of predominantly African figures which included Mohammed Fayek, from Egypt, Dumisa Ntsebeza, from South Africa and Theresa Striggner-Scott, from Ghana. They were the ones that recommended that the case be referred to the ICC not Westren powers.

– UN Security Council Resolution 1593 which referred the Darfur case to the ICC was approved by Tanzania and Benin while Algeria abstained. If they voted against, the resolution would have failed.

– There are three African figures who handled the Darfur case at the ICC. Deputy prosecutor Fatou Bensouda from Gambia, Judge Akua Kuenyehia from Ghana and senior Trial lawyer Essa Faal from Sierra Leone.

Therefore, it is safe to say that the AU’s claim of possessing “unflinching commitment” to combating impunity has no basis whosoever. The AU said nothing about the ICC arrest warrants for Haroun and Kushayb or the case against those who killed their own troops. They never pressed Sudan on the issue of war crimes except privately and with no success. However, they all started jumping up and down when the arrest warrant was issued for the Sudanese president.

The pressing question now following the resolution as to what is the point of the Mbeki Panel they established or an Article 16 resolution?

* The author is a Sudan Tribune journalist, can be reached at [email protected]

(ST)