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AU criticizes ICC ruling on Bashir genocide charges

February 4, 2010 (KHARTOUM) – The African Union (AU) today issued a statement criticizing the ruling of the appeal chamber at the International Criminal Court (ICC) in which it decided that the Pre-Trial chamber committed a legal error in excluding the genocide charges from the arrest warrant against Sudanese president Omer Hassan Al-Bashir.

African Union Commission chairman Jean Ping (Getty Images)

The Bashir case is now back to the Pre-Trial chamber judges to review the and make a new finding on the genocide counts consistent with the interpretation of the evidentiary standard set forth by the appeal chamber.

Many legal experts believe that the ruling means that there is a big possibility that the genocide charges may ultimately be added.

Sudan slammed the ICC decision calling it an infringement on its sovereignty. The Sudanese embassy in Addis Ababa, where the AU is based, issued condemnation statement and its emissary handed it to the AU commission chairman Jean Ping.

Ping, who is one of the fiercest critics of the court, said during the AU summit that the ICC is targeting African states.

“We are not for a justice with two speeds, a double standard justice one for the poor, one for the rich,” he said.

The AU said in the statement released today that the decision “comes at a particular time in the history of the Sudan.

“Over the coming months, the Sudan will be witnessing momentous events, in particular the holding of national elections, in April 2010, and the holding of a referendum on self?determination for Southern Sudan, scheduled for January 2011. For the African continent, the successful completion of these processes and, more generally, the implementation of the Comprehensive Peace Agreement (CPA) are of utmost importance”.

The release made reference to the AU panel on Darfur chaired by Thabo Mbeki which came out with a roadmap to harmonize peace, justice and accountability. It had recommended the establishment of a hybrid court to try Darfur war crime suspects after recognizing flaws in the Sudanese handling of the prosecutions.

However, Sudanese officials including Bashir and pro-government groups made remarks expressing reservation on the proposal and to date nothing has emerged on the practical steps taken to implement the proposal.

Many critics and rebel groups accuse the AU and Mbeki of seeking to protect the Sudanese head of state from prosecution. Prior to completion of Mbeki’s report, the AU decided that none of its state will cooperate in apprehending Bashir irrespective of their legal obligations under the Rome Statute.

In a report released less than two weeks ago, Human Rights Watch pilloried the AU for supporting the embattled Sudanese leader, arguing that such a move was a blow to the entire institution’s credibility.

"The AU, led by some of the continent’s worst autocrats, began accusing the court of unfairly targeting Africans. In reality, these leaders were cynically trying to protect one of their own," it said.

But the pan-African organization defended its stance with regard to the indictment.

“The African Union has always emphasized its commitment to justice and its total rejection of impunity, in line with the relevant provisions of its Constitutive Act. At the same time, the AU reiterates that the search for justice should be pursued in a manner not detrimental to the search for peace. The latest decision by the ICC runs in the opposite direction”.

Furthermore, the AU chided the UN Security Council (UNSC) for not heeding to its request that the warrant be deferred under Article 16 of the Rome Statute.

“The African Union observes with concern that the UN Security Council has, to date, not given due consideration to this request, in spite of the AU’s repeated appeals and the serious risks and dangers associated with the pursuit of the ICC process in the context of the ongoing search for peace and reconciliation in the Sudan, as well as for stability in the region”.

It is highly unlikely that the UNSC will take any steps in that direction. The African members of the ICC will propose an amendment to the Rome Statute granting the UN General Assembly the power to defer cases if the UNSC does not act within a specific timeframe.