Reevaluating the Opening of the African Union Liaison Office (AULO) in Addis Ababa: A Worthwhile Consideration?

[Stephen Lamony is an international lawyer]

This essay benefited from comments by the Coordinator of the African States Parties to the ICC in New York, Mr Marvin Ikondere.

Introduction

In July 2010, International Criminal Court (ICC) President Judge Sang-Hyun Song and African Union (AU) Commission Chairperson Jean Ping met and agreed to establish a Liaison Office to promote dialogue, information exchange, and mutual benefits between the two institutions. African state parties welcomed the news, as they were concerned about the ICC’s previous inactivity despite agreeing to set up the office.

Weeks later, during the fifteenth ordinary session of the Assembly of the AU held on July 27, 2010, in Kampala, Uganda, AU member states made the decision to “temporarily” decline the ICC’s request to establish a Liaison office at the AU headquarters in Addis Ababa, Ethiopia.  However, there have been changes in key positions at the ICC including the appointment of new office bearers at the Office of the Prosecutor (OTP), Registry, Presidency of the Assembly of States Parties and the Presidency of the Court. Additionally, the Africa Group of the UN General Assembly have designated new legal advisers. Given these developments, it is hoped that a more open-minded approach can be taken to initiate discussions on the establishment of the African Union Liaison Office (AULO).

The New York Liaison Office (NYLO) was initiated by the Assembly of State Parties (ASP), in consultation with the court. On the other hand, the proposed AULO is an initiative of the court and has been endorsed by the ASP. In both cases, the ASP had to adopt a decision to establish the respective liaison offices. 

The ASP of the ICC commemorated the 25^th anniversary of the adoption of the Rome Statute at the United Nations in New York on July 17, 2023. July 27, 2023, marked thirteen years since the AU’s decision to suspend the establishment of the AULO. This anniversary presents an opportunity to reevaluate the situation and explore the potential for renewed collaboration between the AU and the ICC.

Reasons for  the AULO Suspension

The suspension of the AULO was partially attributed to the United Nations Security Council’s (UNSC) refusal to defer the proceedings against Sudanese President Omar Al Bashir, as provided for in Article 16 of the Rome Statute. 

African states expressed additional concerns regarding the perceived disrespect they experienced, particularly regarding the conduct of the ICC prosecutor at the time. They accused the prosecutor of making “egregiously unacceptable, rude, and condescending statements regarding President Al Bashir’s case and other situations in Africa”, as the majority of situations under investigation and preliminary examination before the ICC are from Africa. Currently, ten situations in Africa are under investigation, and two preliminary inquiries before the ICC, all are all related to African cases.

However, it is worth noting that since 2010, the ICC has had two prosecutors, one of which was from the African continent. It stands to reason that changes in the Prosecutor’s office would have created an opportunity to reopen discussions regarding an AULO liaison. 

Importance of the AULO

The establishment of the AULO liaison office holds significance for the ICC as it allows for better familiarity with its work among African countries. Moreover, such a role could alleviate discomfort and promote dialogue and information exchange, mutually benefitting both institutions. This is particularly important given recent tensions between the African Union and the ICC including multiple instances of African nations refusing to cooperate with the ICC in arrests. For example, South Africa faced a legal dispute with the ICC over its failure to arrest Sudanese President Omar al-Bashir, citing conflicting obligations under the Rome Statute.

The African States Parties to the ICC constitute the largest group in the ASP. The AULO would serve as a blueprint for renewing engagement with African Union member states that still need to ratify the Rome Statute.

The liaison office’s primary mandate would be to provide information to AU member states, promoting universality and creating an avenue for further engagement with the court. This engagement would encompass discussions on universality, cooperation, and the ever-difficult subject of the immunity of heads of state and senior government officials.

In 2017, the AU called for the mass withdrawal of African states from the ICC due to perceived bias and unfair treatment of African leaders. The AU expressed concerns about perceived bias in the ICC’s focus on Africa–the ICC’s active cases all target crimes against humanity committed in the African states of Sudan, Democratic Republic of Congo, Central African Republic, Uganda and Kenya. “We are not for a justice with two speeds, a double standard justice one for the poor, one for the rich,” On February 4, 2010 during the AU summit, AU Chairperson Jean Ping raised questions about other situations that the court was not expeditiously moving to investigate and prosecute. Jean Ping inquired, “Why not Argentina? Why not Myanmar…why not Iraq?” 

The AULO could enhance communication and cooperation between the AU and the ICC by promoting transparency when the ICC decides to proceed with a case, supporting African Member States in building complementarity and taking regional ownership of accountability, addressing concerns and building trust. The role would therefore strengthen accountability and justice for international crimes. The AULO opening would assist AU member states in building capacity for the Africa Model Law on Universal Jurisdiction over International Crimes (AU Model Law)

Impact of Liaison Office Suspension on AU-ICC Relationship

Not having an AULO undermines all the benefits outlined above. The lack of the liaison office hinders direct communication and coordination between the AU and the ICC, making collaboration and cooperation challenging. The absence of a dedicated liaison office also impedes ongoing efforts to foster dialogue and address concerns, and resolve disputes between the AU and the ICC. Overall, the suspension may impact the perception and influence of both the AU and the ICC, potentially affecting both institutions’ credibility and effectiveness in addressing international criminal justice issues.

The suspension hampers the availability of capacity building initiatives, such as training and technical assistance, which are essential for African countries to develop the necessary skills and knowledge to engage effectively with the ICC and meet their Rome Statute obligations.

Without the liaison office, African countries further lack coordination to present a unified position on ICC matters, affecting their ability to effectively engage with the court and coordinate legal representation. Lastly, the absence of the liaison office may lead to a reduction in advocacy targeted to promote international criminal justice, both to the ICC regarding its engagement with African countries and to African countries regarding their domestic effort and cooperation with the ICC.

AU’s View on Long-Term Prospects with the ICC and Measures for Cooperation

The AU member states hold differing opinions on the long-term prospects of its relationship with the ICC. However, the AU has taken some consensus approaches to ensure constructive engagement and cooperation moving forward:

• Dialogue and Engagement: The AU has emphasized the importance of constructive dialogue with the ICC to address concerns and enhance cooperation. While supporting international criminal justice, the AU emphasizes fairness, impartiality, and respect for member states sovereignty.
• Legal Reforms and Harmonization: The AU has worked on strengthening its own legal frameworks related to international criminal justice. This includes adopting the Malabo Protocol in 2014, which establishes criminal jurisdiction within the African Court of Justice and Human Rights. This promotes regional ownership and complementarity in addressing accountability for international crimes.
• Capacity Building and Assistance: The AU prioritizes capacity building initiatives and technical assistance to support its member states in engaging effectively with international criminal justice mechanisms, including the ICC. This involves providing legal and technical expertise, facilitating knowledge sharing, and organizing training programs to enhance the capacity of African countries capabilities in the field of international criminal law.
• Policy Development and Advocacy: The AU engages in policy development and advocacy to shape the discourse on international criminal justice. It advocates for a balanced approach and addresses alleged biases in the ICC’s focus on African situations. The AU calls for ICC reforms improve its effectiveness, impartiality, and cooperation with regional organizations.

Addressing Issues and Resolving Disagreements between the AU and ICC

The ICC, African leaders, and civil society organizations have made efforts to address the issues and disagreements between the AU and the ICC. Steps taken include:

They have engaged in direct discussions, high-level meetings, and consultations to address concerns and foster understanding. The ICC and the AU have reviewed of their policies, procedures, and practices to identify areas of concern and seek common ground through dialogue. 

However, more could be done. The entities could engage neutral mediators to help bridge differences and facilitate productive discussions. They could both consider reforms or adjustments to structures and decision-making processes to address issues and prevent future disagreements by building trust. They could take up joint initiatives, projects, or programs are pursued to promote cooperation, build trust, and demonstrate their shared commitment to international criminal justice. 

I pushed for establishing the AULO at the Coalition for the International Criminal Court. (CICC) African Civil Society Organizations (CSOs) working on International Justice must connect with the African Union Commission (AUC) in Addis Ababa to advocate for the office. According to Miriam Abaya, local CSOs can effectively change perceptions and rally ordinary African citizens to support international justice.

Rebuilding Trust and Confidence for AU-ICC Cooperation

To rebuild trust and confidence among African states and facilitate the resumption of discussions on establishing a liaison office and signing a Memorandum of Understanding (MoU), the ICC can take the following steps: 

• Engaging in Dialogue: Initiate direct dialogue with the AU’s Office of Legal Counsel and African states, fostering open communication and understanding through seminars, workshops, and high-level meetings. The President of the Assembly of State Parties, the President of the Court, the Prosecutor and the Registrar will need to collaborate and coordinate their efforts to engage the AU successfully. This collaboration is crucial to ensuring the successful signing of a MoU.

• Improve Transparency: Enhance transparency and accountability by providing more information on its decision-making processes, procedures, and outcomes. Publishing detailed reports, provide regular updates on ongoing cases, and engage in more public outreach efforts to promote awareness of its mandate and activities. 
• Promote Complementarity: Strengthen commitment to the principle of complementarity by offering technical and legal assistance to African states, enhancing their capacity for investigating and prosecuting international crimes. Foster cooperation and coordination between the ICC and national authorities. 
• Address Perceptions of Bias: Take steps to address perceptions of bias by expanding its investigations and prosecutions to other regions and situations, going beyond a focus solely on Africa. Engage in outreach efforts to promote awareness of its work globally. 
• Collaborate with Regional Organizations: Enhance collaboration with the African regional bodies, such as East African Community, ECOWAS, as well, to promote complementarity and enhance its effectiveness. Establish liaison offices, sign Memoranda of Understanding, and engage in joint initiatives to address regional challenges related to international criminal justice. 

If the AU agrees to reopen discussions on the liaison office, the President of the Assembly of State Parties, the President of the Court, the Prosecutor and the Registrar must collaborate and coordinate their efforts to engage the AU effectively. 

Last but not least, rebuilding the relationship with the African Union (AU) to establish the liaison office will require a careful balance between possible and impossible, given the current geopolitical issues with the Russia-Ukraine war.