Remarks by Olivia Swaak-Goldman
Swaak-Goldman, Olivia, Proceedings of the Annual Meeting-American Society of International Law
International criminal justice and its components were put to the test during the latest African Union summits. Past African Union decisions, such as the refusal to cooperate with the ICC in the arrest and surrender of Sudanese President A1 Bashir and the rejection of the establishment of an International Criminal Court liaison office for the AU in Addis Ababa, are examples of the unrest regarding the ICC activities. Anti-ICC elements in Africa have been at work to discredit the Court by lobbying for non-support and non-cooperation with complete disregard for legal arguments.
What is often understated, however, is that the practice clearly indicates that the engagement and cooperation of individual African states with the ICC has not diminished over time and remains excellent. Over the last nine years, African states have consistently assisted the ICC at each step of its activities, such as opening investigations, conducting investigations, pursuing and arresting individuals sought by the Court, and protecting witnesses. African states receive more than 50 percent of the Office of the Prosecutor's requests for cooperation, and some 80 percent of these requests are met with a positive response.
EXAMPLES OF AFRICAN COOPERATION
Some concrete examples of cooperation can help to illustrate this point. Uganda, the Democratic Republic of Congo, and the Central African Republic have all referred the situations within their territory to the Court, requesting its intervention. Similarly, almost all segments of Kenyan society have welcomed the Court's investigation into the post-election violence. Recent polls indicate that a majority of the Kenyan population (over 60 percent) favors the Court's activities into the matter. African states have also lent support to the intervention of the ICC into the situations in Darfur and Libya through their representatives in the United Nations Security Council (UNSC). UNSC Resolution 1593,1 which referred the situation in Darfur to the Court, included positive votes from Benin and Tanzania, as well as an abstention from Algeria. Similarly, UNSC Resolution 1970,2 which unanimously referred the situation of Libya to the Court, included positive votes from Gabon, Nigeria, and South Africa.
Additionally, in May 2011, President Ouattara of Cote d'Ivoire confirmed his wish for the Office of the Prosecutor to conduct independent and impartial investigations into the most serious crimes committed since November 28, 2010, in the territory of Cote d'Ivoire by confirming the acceptance of jurisdiction of the Court under Article 12(3) of the Statute. (3) Moreover, at last December's Assembly of States Parties, Prime Minister Soro reiterated the previous statement and indicated Cote d'Ivoire's commitment to ratify the Rome Statute very soon. (4) Finally, Libyan authorities cooperated with Court officials during their mission to Tripoli at the end of 2011. As stated before, these examples clearly illustrate the high level of support the Court receives from African states.
African states have also often worked closely with the Court through the AU. Regarding the situation in Kenya, for example, former UN Secretary-General Kofi Annan, on behalf of the AU and in liaison with the OTP, maintained at all times that post-election violence had to be prosecuted either by national mechanisms or by the ICC in order to prevent a recurrence of violence in the 2012 elections. (5) Similarly, in the Darfur case the OTP collaborated closely with the Arab League as well as the AU High-Level Panel on Darfur, chaired by the former President of South Africa, Thabo Mbeki, to ensure accountability for the crimes in Darfur at all levels. (6)
AFRICAN PRINCIPLES AND THE ICC
The role played by African institutions and African people have been indispensible during the formation process of the system of international justice designed by the Rome Statute. …