THE AFRICAN UNION’S RESPONSE IN THE PROSECUTION OF SEXUAL AND GENDER-BASED VIOLENCE IN ARMED CONFLICT SITUATIONS AT
5.1 INTRODUCTION
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CHAPTER 5
THE AFRICAN UNION’S RESPONSE IN THE PROSECUTION OF SEXUAL
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from scholars,1082 the Protocol provides for the prosecution of SGBCs in armed conflict situations at the state level, through its General Affairs Section and at the individual level through its International Criminal Law Section.1083
The assessment of the AU’s response to prosecuting SGBCs in armed conflict situations at the regional level is to determine whether the proposed African Court of Justice and Human and Peoples’ Rights (ACJHPR) will be a useful means of bridging the impunity gap for SGBV committed on the continent in armed conflict situations. When inundated with cases, the International Criminal Court (ICC) will be forced by financial constraints to be selective as to cases chosen for trial. The yearly forecast of activities of the Office of the Prosecutor (OTP) of the ICC is proof that not every situation of SGBV would necessarily be selected for trial at the ICC.1084 Thus, it would be necessary to fill the impunity gap at the regional level, where hearing cases of SGBV committed in armed conflict situations is difficult to prosecute at either the international or the domestic level. Moreover, if other AU states follow the lead of those states which have already expressed their intention to leave the ICC,1085 and carry out their threat, an
1082 Abass for example, is of the opinion that the creation of the ACJHPR does not add any value to the international prosecution of crimes. Ademola Abass ‘Prosecuting international crimes in Africa: Rationale, prospects and challenges’ (2013) 24 The European Journal of International Law 934 at 936. See also Coalition for an effective African Court on Human and Peoples’ Rights et al ‘Implications of the African Court of Human and Peoples’ Rights being empowered to try international crimes such as genocide, crimes against humanity and war crimes’ at 14 available at
http://www.africancourtcoalition.org/images/docs/submissions/opinion_african_court_extension_jurisdiction.pdf (accessed on 16 February 2017) (stating that ‘conferring criminal jurisdiction on the African court will require the re-design of the institutions and instruments of the African regional human rights system as well as the establishment and funding of a complementary regional regime of cooperation in criminal matters.’).
1083 See 5.3 below regarding these Sections.
1084 Office of the Prosecutor (OTP) of the ICC strategic plan for 2016-2018, the OTP forecast nine preliminary examinations, one new situation under investigation, six active investigations, nine hibernated investigations, five pre-trial phase, five-trial phase and two final appeals. ICC-OTP, Strategic Plan| 2016-2018, 6 July 2015at 24 available at https://www.icc-cpi.int/.../070715-OTP_Strategic_Plan_2016-2018.pdf (accessed 11 November 2016).
1085 In October 2016, Burundi’s Parliament voted in favour of leaving the ICC. On 27 October 2016, Burundi officially informed the UN of its intention to withdraw from the ICC. Burundi stated that its reason for withdrawing from the ICC was that the preliminary investigations into Burundi’s pre-election violence by the ICC in April 2016 violated the complementary principle in the Rome Statute. Burundi officially informs UN of intent to leave ICC available at https://www.hrw.org/news/2016/10/27/burundi-icc-withdrawal-major-loss-victims (accessed 10 February 2017). United Nations Reference: ‘C.N.805.2016.TREATIES-XVIII.10 (Depositary Notification)’
available at https://treaties.un.org/doc/Publication/CN/2016/CN.805.2016-Eng.pdf (accessed 10 February 2017).
South Africa and The Gambia had also announced their intention to withdraw from the ICC in October 2016. South Africa’s instrument of withdrawal which was signed by its Minister of International Relations and Cooperation on 19 October 2016, stated that South Africa ‘found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC of obligations contained in the Rome Statute of the ICC.’ However, in March 2017 South Africa officially withdrew its notice from the ICC, after a High Court decision in February 2017 found the notice unconstitutional. South Africa’s instrument of withdrawal available at https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-
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impunity gap will be created at the international level in the prosecution of SGBCs which occur in armed conflict situations. This would mean resorting to prosecuting SGBCs where possible at the regional level if prosecution is not possible at the domestic level.
This chapter commences by reviewing the Constitutive Act (CA) of the African Union, the legal basis for the creation of the ACJHPR. It is also significant as the AU relies on the CA as justification for it ruling that member states comply with its decision not cooperate with the ICC’s request for the arrest and surrender of President Al-Bashir, Sudan’s incumbent head of state.1086 The chapter argues that AU’s concern, right from its establishment, in handling human right matters, which include SGBCs, is to establish peace and security at the expense of justice in Africa. The AU would rather deal with human rights crimes, which include SGBCs, through peace talks than seek justice through the courts. The chapter also considers the prosecution of SGBV in armed conflict at both the state and individual levels. At the state level, this involves consideration of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo Protocol or the African Women’s Protocol). At the individual level, this will involve considering the Malabo Protocol. In considering both protocols, attention is drawn to the challenges likely to result in applying them to the prosecution of SGBCs committed in armed conflict at the regional level. This would enable the drafters of the Malabo Protocol to consider amendments to the protocol in order to facilitate the prosecution of these crimes at the regional level.
International-Criminal-Court.jpg (accessed 10 March 2017). Daily Maverick ‘Top SA jurists make the case for the ICC as SA withdraws its original notice of withdrawal’ available at https://www.dailymaverick.co.za/.../2017-03-08- top-sa-jurists-make-the-case-for-the-i (accessed on 10 March 2017). On 25 October 2016, Gambia declared its intention to withdraw from the ICC. Gambia’s information minister stated that the ICC is an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.’ In February 2017, Gambia withdrew its notice from the ICC, after there was a change of government in January 2017. Why African states are leaving the ICC available at www.iol.co.za/news/africa/why-african-states-are-leaving-the-icc-2084346 (accessed 27 November 2016). Newsweek ‘Why an African mass withdrawal from the ICC is possible’ available at www.newsweek.com/icc-international-criminal-court-africa-gambia-south-africa-buru (accessed 10 March 2017).
Jollofnews ‘Gambia cancels withdrawal from the ICC available at https://jollofnews.com/2017/02/13/gambia- cancels-withdrawal-from-the-international-criminal-court/ (accessed 10 March 2017).
1086 See for example, African Union Press Release Nº 002/2012, On the decision of Pre-trial Chamber 1 of the International Criminal Court (ICC) pursuant to Article 87(7) of the Rome Statute on the alleged failure by the Republic of Chad and the Republic of Malawi to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of President Omar Hassan Al-Bashir of the Republic of the Sudan.
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5.2 REGIONAL INSTRUMENTS OF THE AFRICAN UNION RELATING TO