We are determined to deal once and for all with the scourge of conflicts and violence on our continent, acknowledging our shortcomings and errors, committing our resources and our best people, and missing no opportunity to push forward the agenda of conflict prevention, peacemaking, peacekeeping and post-conflict reconstruction. We, as leaders, simply cannot bequeath the burden of conflicts to the next generation of Africans.1
Despite such a bold statement from the African Union (au), the fulfilment of this declaration by our leaders has not been taken up and fully realised. Yet, I remain hopeful that, as a continent, we will, and are, finding ways to address the many peace, security and development challenges before us. This was part of the reason I decided to pursue PhD research into the African Union’s decision to grant criminal jurisdiction to its judicial organ – The African Court of Justice and Human and Peoples’ Rights.
One of the hardest challenges when researching matters related to the au is the lack of publicly available material. Despite an official website, which is difficult to navigate, key sections are either missing links or simply non-existent. While the au makes available a selection of the organisation’s key documents anything beyond this is difficult to find. Unlike researching the United Nations (UN), with its wealth of available information, there is little transparency in the negotiations and meetings of au bodies. There are limited public records of meeting notes, but detailed travaux préparatoires as typically seen with the likes of the Rome Statute negotiations do not exist. According to one African diplomat I spoke to, this is due to capacity constraints so that the au is unable to provide official transcriptions of meetings and debates. Not to mention the desire for certain discussions remaining opaque. Therefore, reliance has been placed on the summarised reports by au bodies and the Assembly and Executive Council decisions. Undoubtedly, some debates would have been held and issues discussed which have been omitted from this book due to lack of access or availability. It is also often difficult to identify positions taken by individual states. This forced me to rely on second-hand accounts to identify positions taken and fill the gap left by the limited records of debates. Given that the majority of the work and negotiations of the au are conducted behind closed doors this lack of transparency is an institutional weakness, further shrouding its working in an unnecessary mystique.
To mitigate this challenge, I conducted field research and interviews towards the beginning of the research in a three-month trip to Addis Ababa, Ethiopia from May to July 2015. As the seat of the au all African states are represented and I hoped to gain access to both au and state officials. The semi-structured interviews were used to verify and supplement desk-based research and add to my understanding of the new court and the politics and process behind its adoption. From these interviews I gained an insight into perceptions which were missing or unclear in the official documents or simply unavailable.
The au proved a valuable source of information for early documents unrelated to the specific icls negotiations but less so in relation to the specific documents requested on the court. An au official explained this based on the fact that no decision had been taken on the classification of the documents at the time. Due to the lack of official transcripts and access to the confidential reports I was unable to fully scrutinise the actual debates during the negotiation stage.
Attempts to interview Addis Ababa based African state officials proved challenging. Some were not willing to discuss the matter, while other simply never responded to repeated requests. Still, I was able to interview officials from three of the five regions (Central, East, North, South and West Africa) the majority of whom had been directly involved in the negotiations. I also had email correspondence with additional state officials not based in Addis, as well as face to face meetings during attendance at various conferences throughout my research.
The interviews proved fruitful and key themes and a common understanding on the court become apparent. Yet, these findings are not representative of all African states and are insufficient for empirical analysis. However, this anecdotal evidence is important in advancing the limited historical research on the icls to date. The judges of the African Court of Human and Peoples’ Rights in the Malabo Protocol role in the Malabo Protocol negotiations is acknowledged. While interviews would undoubtedly have enriched my findings, funding limitations prevented an additional trip as the Human and Peoples’ Rights Court is located in Arusha, Tanzania.
In addition to au and African state officials, I approached the icc’s Jurisdiction, Complementarity and Cooperation Division with an interview request, which was kindly granted. The decision was made to limit the number of icc officials interviewed because the main purpose of the interview was not to garner insight into the icc’s vision for the new court. All officials interviewed were willing to discuss the issues on the condition that it be anonymised as they provided the information in their personal capacity. I am deeply grateful to all those interviewed who gave generously of their time and in sharing their experience of the negotiations and working of the institutions.
A constant challenge when researching a topic like the icls amidst the ongoing tensions between the icc and au, and the organisation’s internal politics, is the sudden changes to the landscape. During the writing of my thesis and this book, several African states threatened and/or started withdrawal processes from the icc. Some of these states subsequently recanted their withdrawal or changed their stance due to changes in governments. Additionally, for decades the au has not been fully representational of all African states. Morocco withdrew its membership in protest about the au’s recognition of the Western Sahara which the North African country does not recognise as an independent state but as a part of its own territory. However, in January 2017 Morocco re-joined the au, presenting new challenges to referring to the au as a group in consensus.
Finally, when conducting research relating to Africa, it is easy to make the mistake of treating the continent as a monolithic group with no discernible differences or views. In this book the presentation of African states, ideas and concepts as homogenous is avoided as much as possible. However, it is inevitable when discussing the au and its member states to refer to them as ‘Africa’. Care has been taken to avoid misrepresentation of the views of states yet generalisations have been made on the assumption that common au perspectives ‘provide examples of common values’,2 as done with regards to the international community.