In mid April, the South African city of Pretoria hosted a meeting of African and European civil society. Sponsored by the European Union (EU), its objective was to review the status of international criminal justice in Africa and discuss what strategies may be adopted to support further progress in the continent for cases before the International Criminal Court (ICC).

The meeting was also supposed to generate proposals that the EU might take into account in the design of its next funding for the activities of the court. The EU is the largest donor of the court and has also devoted a large amount of resources in support of the articulation of the demand side issues for the court.

The meeting, which I attended, brought together members of the EU delegations around Africa, as well as northern and African NGOs working on international criminal justice. The South African government was also represented. Participants discussed the backlash against the ICC in Africa, which has resulted from the reference of the Sudanese and Kenyan situations to the court.

Hostility towards the court is being fuelled by the African Union (AU) even though some of its members have not ratified the Rome Statute. However, all AU members are able to sit in judgment over the court as a result of their membership of the union. In future it may be necessary for the African member states of the ICC to establish a forum through which they will be able to process issues relating to their membership of the court.

Currently the African state parties lack such a platform. As a result they have been using the platform of the AU to address issues of concern to them as members of the court. Further, African member states have been using the platform of the Assembly of State Parties but this is too infrequent to be ideal. For example, discussions on whether or not to maintain membership of the statute in response to the decisions of the UN Security Council have been processed by the AU. While the AU can speak on these issues, member states of the statute need to reserve for themselves the capacity to also meet outside of the framework of the AU, as this will afford them a more objective platform to reflect on their issues.

The expansion of the mandate of the African Court of Justice and Human Rights to include a jurisdiction to deal with international crimes was discussed. It was the unanimous view of the meeting that such a court would, in the final analysis, be ill-advised, given the objective challenges that would need to be overcome in keeping the court going. These include the uncertainty as to when a protocol for the court is likely to receive enough ratifications for it to come into force, in the first place.

The second issue relates to the financial and technical capacity required to run a separate criminal jurisdiction outside of the ICC, and whether African states will be able to pay for it. Thirdly, if, as is the case at the moment, there is a lack of political will to support the ICC, on the part of a number of African states, where will the will come from to support such a court?

There is also the question of what relationship such a court would have with the ICC. Would there be a complementary relationship and would the ICC still be the court of final resort? There was also concern about the possibility that such a court will be used as an excuse to withdraw co-operation for the ongoing cases. While, in principle, it was the view of the civil society organisations that such a court would be a bad idea, it was nevertheless realised that civil society will be powerless to stop African countries from going down that route should they choose to do so.

There was no reliable information at the meeting on the actual status of the protocol that has been under drafting by the AU in this regard, with speculation that the next Summit may be the occasion for its discussion. The AU, which failed to honour an invitation to attend the meeting, would have shed light on this matter.

Another matter that came up for discussion during the meeting is the role of civil society in advancing the cause of international criminal justice. Anecdotal evidence was provided which tends to show that the contribution by civil society to support the search for justice through the Rome Statute is making a difference. Pressure by civil society led to the decision by Nigeria to hand over Charles Taylor for trial before the special court for Sierra Leone.

Also, the work of civil society in restricting the movement of the Sudanese President Omar Al-Bashir, against whom two arrest warrants have been issued by the court, was referred to in this regard. Although Mr Al-Bashir had visited Kenya during the promulgation of its new Constitution in August 2010, an attempt at a repeat visit in December was thwarted by the pressure exerted by Kenyan civil society working with others elsewhere. It was also noted that in the aftermath of the attempted second visit, civil society had filed an application in the Kenyan High Court seeking an arrest warrant against Mr Al-Bashir. Further, the work of Kenyan civil society in influencing the approach that has been adopted in the country by the ICC and also in supporting the realisation of its objectives was noted. The categorisation by civil society of crimes in the country’s post-election violence had informed the decision by the prosecutor to bring two separate cases before the court in relation to the Kenya situation.

There was satisfaction that there exists a healthy north-south civil society relationship, which has enabled some of this work to be done. Also, national civil society, especially in situation countries, was seen as an important player in meeting the objectives of the Rome Statute. There was, however, concern that there is, at the moment, not sufficient involvement of national civil society in the affairs of the AU. Increasingly, the AU is an import site of advocacy regarding ICC issues, and while local accountability is a matter that civil society needs to pursue, it was felt that national civil society also needed to develop an interest in, and involvement with, issues at the AU level. It was noted that without national interest in the happenings at the AU, officials were able to take decisions on behalf of their countries irrespective of the national interest.

The attention of the meeting was drawn to the fact that a large number of important positions in the court will fall vacant and will need to be filled in the near future. The position that attracts the greatest interest is that of the prosecutor.

A search committee appointed by the Assembly of State Parties to identify suitable candidates for the position of prosecutor had been conducting its work. The meeting resolved that keen interest in the goings-on in the appointment of the prosecutor was called for.

This article was originally published in the Nairobi Law Monthly