1. Presentation to the Symposium on the ICC that Africa Wants 9-10 November 2009 By Dr Athaliah Molokomme Attorney General of Botswana

2.  Disclaimer: I don’t speak for African States Parties (ASPs) or the African Union (AU);  I was not at 3-6 Nov 09 AU prep meeting so have 2nd hand information from Botswana delegation;  ‘Concerns’ of ASPs, AU or Botswana not necessarily the same (hence ‘perspectives’);  Aim to share my understanding of the various concerns, as well as the Botswana position on ICC

3.  Arguments over participation of non states parties resolved in favour of their non participation;  Affirmed commitment of AU MS to the ICC, combating impunity, promoting democracy, rule of law & good governance;  Legal recourse in Rome Statute to be followed by affected parties regarding appeal process & immunity;  Agreed to Preparatory meeting of African States Parties (legal experts, Ministers) for 2010 Review Conference;

4. No consensus on:  Waiver of immunity & consent to surrender (Articles 16 & 98);  Discretionary Powers of the ICC Prosecutor;  Collective African withdrawal from the Rome Statute

5.  Concept note focus on four main issues: ◦ Procedural issues: Guidelines for ICC Prosecutor’s exercise of discretion; ◦ The role of the Security Council in the work of the ICC articles 13 & 16 Rome Statute; ◦ Immunities of Officials whose states are not party to the Rome Statute; ◦ Proposals regarding the crime of aggression.

6. Concern: AU concept paper argues that ICC intervention in African conflicts may prejudice attempts to end conflict or to secure peace. Possible solutions:  Revising statute of the court by adding other factors for consideration by prosecutor; or  Assembly of States Parties to promulgate guidelines that prosecutor should be obliged to take into account – preferred AU position;  Prosecutor to review 2009 regulations & 2007 policy paper in response to calls from States Parties

7. Concern 1: Legitimacy and appropriateness of UNSC referrals conferring ICC jurisdiction over non state party situations, nationals and leaders (e.g. Sudan President arrest warrant); Possible solution: Another/ additional body to be mandated by UNSC to exercise power of referral.

8. Concern 2: Power of UNSC to defer investigations for 12 months requires approval of 9 members without active opposition by any of the permanent members exercising veto right. Possible solutions: Ultimate political oversight be exercised by another body, e.g. Assembly of State parties; or Assembly of States Parties could also provide for deferral of a case in the same way as UNSC. NB: AU Concept paper acknowledges potential problems with both options.

9. Concern: Tension between Art 27 and 28: Article 27 provides that the fact that state officials possess international immunity does not bar the ICC from exercising jurisdiction; Article 98 directs the ICC not to take action that would result in the violation by States of their international law obligation to accord immunity. NB: ICC relies on states to arrest suspects who may have immunity. Possible solution: Amend statute to provide that immunity be removed for States parties and retained for non States Parties in the case of a NSC referral.

10.  Request ICC prosecutor to review his 2007 Policy Paper and 2009 guidelines, & include promotion of peace to ensure accountability;  UNSC to retain its referral powers in view of its UN Charter mandate to maintain peace & security, & power to set up tribunals;  Amend Art 16 to give UNGA power to defer cases for one year if UNSC fails to do so within 6 months as per ‘Uniting for Peace Resolution 377(v)1950;

11.  RSA, Nigeria, Burundi & Tanzania to present proposal for amendment of Art 16, Botswana to co-sponsor ;  Assembly of States Parties should discuss & clarify Articles 27 & 98 of Rome Statute especially regarding non states parties;  In the meantime, States Parties should consider using Article 119 of the Statute and Rule 195 of the Rules of Procedure and Evidence of the ICC to settle disputes;

12.  African countries are the largest regional block of States Parties to Rome Statute, and have special responsibility to support the ICC;  Latest attempts to undermine Rome Statute & ICC unfortunate & unnecessary;  Botswana unequivocally supports Rome Statute & ICC, rejects impunity;  GOB will cooperate with ICC to ensure prosecution of perpetrators, state party or not, but still has to domesticate statute & warrant.

13. THANK YOU FOR YOUR ATTENTION LET’S DISCUSS!!