Implications of the African Union's stance on immunity for leaders on conflict resolution in Africa: The case of South Sudan and lessons from the Habré case

Abstract

After 2009 when the International Criminal Court issued an arrest warrant against President Omar Al Bashir of Sudan, the African Union began to promote an immunity principle for sitting leaders and senior government officials. The immunity principle was formalised in article 46Abis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. While the immunity principle raised an uproar among civil society groups, there has been limited scholarly engagement with its implications for conflict resolution and the need to deter would-be perpetrators of international crimes. Thus, the article examines the impact of the AU's immunity principle on conflict resolution efforts in Africa using South Sudan as a case study and drawing lessons from the case involving the former President of Chad, Hissène Habré. The article contends that even though an AU-led hybrid court without any immunity provisions is to be established in South Sudan, the AU's historical immunity stance will impede the hybrid court from trying the warring leaders who are the main actors responsible for the crimes in South Sudan. As such, the immunity principle provides opportunities for the warring leaders, who eventually will be leaders and senior government officials in line with the peace deal, to enjoy impunity for international crimes. If it is established the court most likely will focus on trying scapegoats of the warring factions in a tokenist effort at justice. The Habré case reveals that the trial of incumbent leaders is possible when incumbent leaders lose political power, but prosecution depends on additional variables such as a lack of international support. In the context of the proclivity of some leaders on the continent to remain in power beyond their constitutional mandates, the AU's immunity stance further provides an incentive for the 'sit-tight-in office syndrome' to avoid future probes into international crimes. The article argues that the AU's strategic shift away from the immunity stance could prevent impunity and provide leaders with greater legitimacy. Key words: African Court; African Union; International Criminal Court; South Sudan; Hissène Habré; human rights; conflict resolution