The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt).  Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading

Immunity under Pressure: The Case of Hugo Carvajal

by Philippa Webb

Hugo Carvajal

Hugo Carvajal © Reuters

A recent legal flurry on the island of Aruba (population: 100,000) has raised interesting questions about the nature and scope of diplomatic/consular immunity.

Hugo Carvajal, the former chief of Venezuelan military intelligence and retired General whose nickname is ‘el Pollo’ (the Chicken), was detained in Aruba on 23 July. He had been admitted to the island on a diplomatic passport and had been named Consul-General to Aruba by Venezuela earlier in the year.

According to news reports, he was detained at Aruba’s international airport pursuant to a request from the United States. He is accused of conspiring with Colombian drug traffickers to export cocaine to the US. In 2008, the US Treasury Department put him on a blacklist, alleging he had protected drug shipments from FARC and provided them with weapons and logistical assistance.

Venezuela’s Ministry for Foreign Affairs rejected the ‘illegal and arbitrary detention of [a] Venezuelan diplomat’ and invoked the 1961 Vienna Convention on Diplomatic Relations. A local judge in Aruba, however, rejected the claim of diplomatic immunity on 25 July. The judge pointed out that Carvajal’s nomination of Consul General had not yet been accepted by the Dutch authorities, which was required since Aruba is part of the Kingdom of The Netherlands. The judge ordered Carvajal to be held pending extradition proceedings. Continue reading

African Union Votes in Favour of Immunity for Senior Officials

African leaders

African Leaders at the African Union Summit last week

At a summit of the African Union held last Friday in Equatorial Guinea, African leaders present voted in favour of an amendment that would grant them and “senior officials” immunity from prosecution for war crimes, crimes against humanity, and genocide before the African Court of Justice and Human Rights.

The text of the amendment, which was passed was as follows:

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

It is unclear who will be entitled to immunity as a “senior state official.” Amnesty International have called the move

“a step backwards in the fight against impunity and a betrayal of the victims who suffered serious human rights abuses.”

Ahead of the meeting on Friday, 42 African and international civil society rights groups objected to the proposed amendment noting in an open letter that the resulting impunity violates international and domestic laws as well as the constitution of the African Union.

The vote was part of a larger discussion on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The African Court of Justice and Human Rights is the result of the decision of the African Union to amalgamate the African Court of Human and Peoples’ Rights and the Court of Justice of the African Union.