Wednesday, March 30, 2011

Collateral Damage: Libya, the AU and the ICC

Irrespective of how the ongoing Libyan crises unfolds (or unfurls) over the coming weeks and months, it seems inevitable that it will leave its mark on two nascent institutions both of which hold promise for ensuring a lasting peace in Africa: the African Union (AU) and the International Criminal Court (ICC). Unfortunately, at least insofar as the AU is concerned, Libya might well prove to be its death knell.



When the AU replaced the out-dated Organization of African Unity (OAU) in 2001, it brought with it the promise of a normative shift insofar as regional African politics are concerned from regime security to human security. In the wake of the West’s and Africa’s failure to prevent the Rwandan genocide, the continent’s politicians included within the AU’s founding document the “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”. Further, the AU Peace and Security Council was established in order to, inter alia, make recommendations to the Assembly regarding the employment of this “humanitarian provision” when war crimes, crimes against humanity and genocide were being perpetrated against the people of Africa. This commitment to prefacing human rights over sovereignty was mirrored in the various sub-regional arrangements which contained similar provisions. However, the failure of the AU to take any concrete measures against Colonel Gadaffi over the past two weeks, and its opposition to the measures being taken by others, will most likely kill off any remaining hope that this provision was anything more than a paper tiger.



That this provision should meet its end in Libya is not without its ironies. Three come to mind:

First, the formation of the AU as a replacement for the defunct OAU – which facilitated the shift to human security and the inclusion of the "humanitarian provision" – was only possible with significant support from Gadaffi himself, just as the continued functioning of the body is largely dependent on the financial support of Libya.

Second, in 2003 the AU adopted a Protocol to its Constitutive Act that provided, inter alia, for the addition of another ground for intervention, namely: a “serious threat to legitimate order” which would allow the AU to intervene to “to restore peace and stability to the Member State”. The inclusion of this ground of intervention was driven solely by Libya who at the time (presciently) envisaged it as a means of guarding against foreign intervention. However, the provision was ultimately phrased in such a manner that makes it the perfect fit for the current Libyan malaise. The Protocol is not yet in force – having been ratified by just under half of the AU member states – however the potential for it to be used as the basis for intervening in Libya, although not realised, remains ironic.

Third, in their fervour to take responsibility for collective security African states have gone so far as to assert that in times of humanitarian crises the AU – as a regional organisation contemplated by article 53 of the UN Charter – can intervene without the authorisation of the Security Council. This bold assertion of autonomy considerably increases the potential for humanitarian intervention by the AU and, until the seismic political shift that led to the passing of Resolution 1973, would have served as the AU’s justification for intervening in the absence of Council approval in Libya had they chosen to do so. The irony is that this autonomy, which not only provided the basis for AU intervention in Libya pre-Resolution 1973 but also strengthened the arguments of other bodies such as NATO for similar autonomy, was proclaimed by the AU in the wake of its disapproval of the UN Security Council’s sanctions imposed on Libya.



Whether the AU as an institution will be able to survive financially post-Gadaffi remains to be seen, what seems inevitable is that the body’s credibility insofar as its commitment to human security will not.







As far as the ICC is concerned, the threat posed by Gadaffi’s fall from grace is less proximate but no less serious. Despite numerous commentator’s creative (and at times morbidly enthusiastic) euphemisms calling for the Colonel’s assassination, the far more likely scenario remains some form of negotiated exit from power that involves political asylum for himself, his family and his inner circle. If that’s to be the case, the likely destination will be an African state (Zimbabwe has already offered such to Ghadaffi, South Africa has an unfortunate history of being a soft-landing spot for Africa’s disfavoured leaders). However, in terms of UN Security Council Resolution 1970 the ICC has jurisdiction over the crimes committed in Libya over the past two months. That investigation, which the Prosecutor (unwisely) has indicated will produce its first “indictments” soon, will more than likely involve request to arrest either Ghadaffi himself or those of his inner circle (including his sons) who will most-likely benefit from the “exit-package” mentioned above. This produces the distinct possibility of another African leader wanted by the ICC being on the territory of an African state, and possibly even a state party to the Rome Statute at that.



The fall-out over the ICC arrest warrant for Sudanese President al-Bashir led to the decision by the AU Assembly that its members shall not cooperate in the arrest of al-Bashir. That decision, and Bashir's subsequent visits to ICC States Parties Kenya and Chad, has brought the relationship between Africa and the Court to its lowest point in both institutions’ short history. Given the increased strain placed on this relationship by the Prosecutor’s investigations in Kenya and the AU’s unfortunate response thereto, it is not by any means clear that this relationship will survive another Bashir-type scenario in the case of Ghadaffi.