New Posture and Old Rhetoric?: The Role of the African Union in International Criminal Justice

With the concretisation and expansion of international criminal justice, intergovernmental bodies other than the United Nations Security Council (UNSC) are increasingly becoming important role players. While African countries have been active at various times in the decisions to establish the International Criminal Tribunals for Yugoslavia (ICTY), Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and more recently the proposed Special Court for Central African Republic, the African Union, as a grouping of African states is assuming greater and broader roles in the functioning of international criminal justice system. With the adoption of the Malabo Protocol on the African Court of Justice and Human Right has waded into previously unexplored territory. In the same vein, the AU’s role in the creation of the Extra-Ordinary African Chambers for the trial of former Chadian dictator Hissene Habre for alleged torture and crimes against humanity committed in Chad is another example of the AU’s expanding forays into the unfolding system of international criminal justice. The voices of various AU organs, in particular the Assembly, Pan African Parliament and the Peace and Security Council in debates around universal jurisdiction and the International Criminal Court (ICC) and its work in Africa add to the stack of new forms of engagement.This contribution locates international criminal prosecutions – at the national and international levels – within a broader context of responses to conflict and associated atrocities. It discusses the evolving roles of the African Union and its various organs – political, deliberative and judicial. The contribution argues that regional and sub-regional bodies have a role to play in international criminal justice: directly in respect of prosecutions at the international and national levels; and indirectly in a number of other ways that has a bearing on international criminal justice. Noting that this involvement by regional and sub-regional bodies in international criminal justice is for the most part novel, it argues that this heralds a new and exciting era of engagement that should contribute to the fight against impunity and by extension to peace and security on the continent. However, the approach adopted (ad hoc, reactive and in some measure antagonistic) and certain measures taken by some of these bodies have the potential of undermining or rolling back gains made so far in the fight against impunity.The contribution integrates the more traditional mandates of regional bodies – in maintenance of peace and security – into the debate, arguing that some of these functions have relevance for international criminal justice. The contribution argues that while the potential contribution of the regional and sub-regional bodies under discussion cannot be underrated, various factors dictate a reasoned and politically prudent approach that recognises the important – yet in some crucial respects limited – ability of these bodies to respond effectively and speedily to international crimes. While suggesting that judicial mechanisms at this level fit within a broadly conceived notion of complementarity in international criminal justice and respond to the imperative of burden sharing with the permanent International Criminal Court in responding to atrocities and international crimes, it argues that it is critical to recognise the legal and practical limitations attendant to their variety of mandates.