Notes from meetings with representatives of Benin, South Africa, Lesotho, Uganda, Malawi, Madagascar, Central African Republic

, Mali, Comoros, RC, Cameroon, !ffice of Legal Counsel, epartment of "olitical Affairs, #U delegation to the AU$ %anuar& '()'*, '(+*$  Agenda item on consideration and adoption of the draft protocol of the African Court of Justice and Human Rights (i.e. with criminal Jurisdiction) was removed for several reasons.  Decision 766 of the Januar !"#$ A% summit re&uested that the African %nion 'eace and (ecurit Council (A%'(C) and A% )ffice of *egal Counsel ()*C) provide them with the financial implications of empowering this court with criminal +urisdiction, a report of the structural and financial implications has -een prepared.  A (tate 'art to the Rome (tatute of the .nternational Criminal Court (.CC) has said that it has issues with ratif ing the draft protocol should it -e adopted, -ecause their understanding is that when the ratif the treat of the Court which has three sections of the Court//0eneral Affairs, Human and 'eoples1 Rights, and .nternational Criminal *aw respectivel //the will -e o-liged to compl with all the o-ligations from the three sections. 2he (tate 'art noted that some A% mem-er states ma not -e interested in ratif ing a treat which will re&uire them to -e -ound - o-ligations of three sections. Another anal st o-served that the draft protocol of the African Court with criminal +urisdiction has not -een adopted so ratification can1t ta3e place.  2here are still definitional pro-lems with the crime of unconstitutional change of government. 4hile 5g pt and other countries support the idea of popular uprising e.g. the Ara- uprising, other countries are against it and feel it -reaches the A% charter on governance, democrac and elections and consider uprising as an unconstitutional change of government. A definition of the crime of unconstitutional change of government has -een developed, ta3ing into account the issue of popular uprising in all its dimensions.  5thiopia has issues with the current draft protocol and wants discussions to -e opened on several aspects of the draft protocol.  6o immunit e7ists for Heads of (tate and senior government officials in the current draft protocol, A% mem-er states are concerned a-out this issue and want it to -e addressed.

 8inisters of Justice and Attorne s 0eneral will meet and ma3e a decision on the Court -efore the ne7t A% summit in the summer of !"#9. Ne,t AU Chair  8auritania will ta3e over the rotational A% chair after 5thiopia1s term e7pires.

-enue of the ne,t AU Summit.  0a-on had e7pressed interest in hosting the ne7t A% summit in the summer of !"#9. However, 0a-on withdrew its interest later, arguing that the Coalition for the .CC (C.CC) is ver powerful and will not allow )mar Al/:ashir to attend the A% summit in the territor , li3e the did 8alawi.  Chad e7pressed interest in hosting the A% summit a month ago.  5&uatorial 0uinea has offered to host the A% summit this summer which will ta3e place in either June or Jul . AU)/CC %oint technical cooperation seminars  2he A% has held two +oint seminars with the .CC in !"## and !"#! to esta-lish greater cooperation and mutual understanding and was planning on hosting the third in !"#$. However, -ecause of the tensions over the ;en a .CC cases, the Chairperson of the A% Commission, Dr. 63osana Dlamini/<uma advised against holding these +oint seminars, in consideration of the strained relations -etween the A% and the Court. South Africa0s position on the /CC.  A (outh African is the chairperson of the A%= (outh Africa would not want to +eopardi>e its chairmanship - ta3ing a different position from that of other A% mem-er states.  Also (outh Africa will -e v ing for a seat at the %6 (ecurit Council (%6(C)= it will need support of all African states. 1ithdrawal from the Rome Statute.  6on/(tate 'art (6('), (udan, raised the issue during the Decem-er #6/#7 -rainstorming session on -road areas of .nternational Criminal Justice ( stem, 'eace, Justice and Reconciliation as well as the impact?actions of the .CC in Africa held in Addis A-a-a, 5thiopia.  (udan was supported - another 6(' (Rwanda) and other states. 2he idea of withdrawal didn1t gain an traction. A% 8em-er (tates and (tates 'arties to the Rome (tatute will continue to -e divided on withdrawal. 2here are some states in Africa who have reason to -e afraid of the .CC, while others don1t. Complementarit& 2he relationship between the African Court of %ustice and 3uman Rights and the /CC4

 .n 6ovem-er !"#$, the A% resolution (through the government of ;en a) proposed an amendment to allow recognition of regional +udicial mechanisms as follows@ “Emphasizing that the International Criminal Court established under this statute shall be complementary to national and criminal Jurisdictions.”  However, during the Decem-er #6/#7 -rainstorming session on -road areas of .nternational Criminal Justice ( stem, 'eace, Justice and Reconciliation as well as the impact?actions of the .CC in Africa, when an e7pert who had -een invited to facilitate the discussions suggested that the African Court of Justice and Human Rights should -e complementar to the .CC, the idea was re+ected - A% mem-er states who decided against it. AU)/CC Liaison office.  2he issue of esta-lishing the office was -rought up - the 8inister Counselor of %ganda (who was spea3ing in his personal capacit ) during the Decem-er #6/#7 -rainstorming session on the -road areas of .nternational Criminal Justice ( stem, 'eace, Justice and Reconciliation as well as the impact?actions of the .CC in Africa.  However, Algeria opposed the idea of esta-lishing the office, arguing that it had -een re+ected - heads of state.  Aet, Decision !B6 of the Assem-l of the A% states clearl that@ “Decides to reject for now the re!uest by the ICC to open a liaison office to the "# in "ddis "baba and re!uests the commission to inform the ICC accordingly.”  .t was also mentioned that the 'resident of the A(' said that there is currentl no -udget for esta-lishing the A%/.CC *iaison office and, given the current climate of strained relationships -etween the A% and the .CC, perhaps it would -e -etter for .CC staff to come to Addis A-a-a on missions as opposed to having a presence in Addis A-a-a. "erception of political influence b& postponement of 5en&atta trial.  8em-ers of the A% contact group of the 57ecutive Council on the .CC (composed of %ganda, 8auritania, 6ami-ia, (enegal and :urundi) undertoo3 a mission to 6ew Aor3 in !"#$. 2he met with the 'ermanent Representatives of Crance and *u7em-ourg, among others. An official of the A% commission, who was part of the delegation to 6ew Aor3, stated that he -elieves that the Court is politicall interfered with -ecause some (ecurit Council mem-ers 3new in

advance that the trial date would -e deferred. 2he official said Crance told them that the trial would -e postponed in the first wee3 of Ce-ruar , while *u7em-ourg said the trial would -e postponed in earl 8arch. 4e learned that the contact group was informed that -ecause the trial dates would -e postponed, there was no need for a deferral as the trial date was going to change.  2he 8inister of (tate for Coreign Affairs of %ganda, a trained law er, said that the fact that some mem-ers of the %6(C 3new a-out postponement of the trial is unaccepta-le and that the A% contact group is going to raise this issue with the Heads of (tate.  .t must -e noted that the African (tates on the :ureau and, in particular, %ganda, who raised the matter at an informal meeting of the :ureau in 6ew Aor3 with 'resident (ong on # 6ovem-er, the da after the (ecurit Council discussion.  Crom the -eginning of that wee3 ever one in 6ew Aor3 3new that the Cham-er was considering a defence re&uest filed on !D )cto-er see3ing deferral until at least #! Ce-ruar , !"#9.  2he )ffice of the 'rosecutorEs ()2'1s) response was filed at around #6@"" 082 (#7@"" Hague time) on $" )cto-er, and was the parties were immediatel notified. 2he filing made clear that )2' did not oppose the deferral re&uest, -ut suggested an earlier start date of $ Ce-ruar , !"#9. . -elieve that there was immediate media coverage of this in ;en a.  2he )2' filing was made pu-lic on the .CC we-site at "B@!" 082 on $# )cto-er (in the earl hours of the morning in 6ew Aor3).  2he Cham-er issued its decision a few hours later, granting the deferral -ut setting D Ce-ruar as the provisional start date. 2his was notified to the parties at #9@"! 082 and posted on the .CC we-site at #9@"6 082. A press release was sent to all media at #9@$$ 082 and posted on the we-site at #9@$B 082.  0iven the time difference with 6ew Aor3, this means that@

• •

.nterested parties in 6A would have -een aware of the )2' filing as soon as the wo3e up on the morning of $# )cto-er= )-servers of the .CC would have understood that, given that )2' were not opposing a deferral, it was ver li3el that the Cham-er would grant this, su-+ect to specific dates=

2he mem-ers of the (ecurit Council will have -een aware of the Cham-erEs decision and the new start date from at least an earl stage in the CouncilEs meeting.

 .t seems to -e clear that the A% contact group wants to overpla the issue to get political capital or leverage. 6ollow up on proposed amendments.  %ganda and (outh Africa too3 the lead on amendments during A(' #!.  2he A% will follow up with African (tates 'arties to the Rome (tatute to see what the can do. .f the need support of the A%, the )*C will support them.

6ollow up on see7ing an Advisor& opinion on immunit& of senior government officials from the /nternational Court of %ustice.  Decision $B7 of the Assem-l re&uested the Commission to consider see3ing an advisor opinion from the .nternational Court of Justice (.CJ) regarding the immunities of senior officials under international law.
 8inisters of Justice and Attorne s 0eneral endorsed the re&uest to approach the .CJ through the %nited 6ations 0eneral Assem-l (%60A), for see3ing an advisor opinion on the &uestion of immunities, under international law= of Heads of (tate and senior state officials from (tates that are not 'arties to the Rome (tatute of .CC (Decision 9#B)= and, in this regard, the Decision also re&uested the Commission to underta3e further stud on the advisa-ilit and implications of see3ing such advisor opinion from .CJ and to report thereon to the 57ecutive Council=

 2wo internal studies have -een underta3en - the )*C and the A% Commission on .nternational *aw (A%C.*). A draft report is read and hasn1t -een released. 2he )*C will travel to 6ew Aor3 to consult with the Africa group and legal advisers from Africa on the implications of the stud . 2hen the report will -e handed over to the 8inisters of Justice and Attorne s 0eneral who will decide whether or not to go ahead and see3 an opinion. (hould the decide to see3 an advisor opinion, the will have to go the .CJ through the %60A $

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