In a decision that is widely being met with incredulity, African leaders have decided that heads of state and top administrators cannot be prosecuted for war crimes, crimes against humanity, and genocide.
The move was made at last week's African Union (AU) summit in Equatorial Guinea to alter the protocols of the proposed African Court of Justice (ACJ ) in order to offer immunity to all sitting heads of state and "high level officials."
"It's a step backwards in the fight against impunity, and it's also a betrayal of African victims of serious human rights violations," Hugo Relva, legal advisor at Amnesty International's Law and Policy Program, told VICE News.
In recent years, AU members have accused the International Criminal Court (ICC) of disproportionately targeting Africans for prosecution, and the ACJ is intended in part to prove the continent can enforce justice and human rights on its own. Immunity essentially undermines that premise.
It was fitting, perhaps, that the meeting took place in Equatorial Guinea, the oil-rich country ruled for a quarter century by idiosyncratic president-cum-dictator Teodoro Obiang, a man accused of practically every sort of human rights violation. Unsurprisingly, journalists in the capital Maribo were reportedly kicked out of the summit, held in a lavish half-billion dollar convention center. The meeting was capped by a rousing ovation for newly elected Egyptian president Abdul Fattah al-Sisi, whose government recently confirmed death sentences for 183 members of the Muslim Brotherhood.
Though the AU often projects itself and is frequently reported as a singular voice, the vote reflected a concerted push on the part of a minority of leaders, two of whom have been charged by the ICC. Kenya's president Uhuru Kenyatta has been accused of fomenting ethnic violence that marred the 2007 elections, and Sudan's President Omar al-Bashir has been charged with orchestrating genocide in Darfur. Both angled to weaken the African court's ability to pursue heads of state and high level official, sources close to the AU told VICE News.
Several others, including South Sudanese President Salva Kiir and Rwandan President Paul Kagame, both accused of orchestrating human rights violations — albeit not charged — would likely be heartened by the change in protocol. Ethiopia is said to have used its sway to help pass the provision.
"The decision makes for an absurd headline, but it says something about where at least this group of African leaders is on justice and accountability," Mark Quarterman, Director of Research and Programs at the Enough Project, told VICE News.
The provision flies in the face of recent efforts in countries across the continent, says Relva. Several nations, including South Africa, Burkina Faso, and the Comoros have all passed laws clamping down on immunity for human rights violators.
The AU decision also appears less of a necessity for the likes of Bashir and Kenyatta than a cynical message to Africans themselves. The ACJ hasn't even been created yet, and leaders like al-Bashir and Kenyatta are still able to travel around Africa with ease, despite ICC warrants. However, immunity at the African court would have no bearing on the ICC's ability to pursue human violators on the continent.
"In a continent that has been beset by terrible wars in which terrible atrocities have occurred, they are saying accountability for everyone but us," said Quarterman.
Since the 1946 conviction of Adolph Hitler's successor Karl Dönitz at Nuremberg, it has been accepted under international law that leaders should not be protected from prosecution for grave crimes committed while in office.
"Under conventional law, heads of state and heads of government do not enjoy immunity with regard to crimes at the international level," said Relva.
Since its founding in 2002, the ICC has only prosecuted Africans, a fact often cited to explain the unease among some leaders, many of whom were initially the court's strongest supporters. But of the eight cases it's taken up, half have been referred by African countries themselves. The case against Joseph Kony, leader of the Lord's Resistance Army, for instance, was taken up on request from Uganda.
Recently, Yoweri Museveni, Uganda's president of three decades, has sent his armed forces to fight in South Sudan, where they stand accused of using banned cluster munitions — precisely the kind of crime that could potentially be addressed at the ACJ. Uganda is now throwing its troops into the Central African Republic, further complicating the lawlessness there. Museveni, one of Africa's most powerful leaders, has meanwhile stood with Kenyatta in his quixotic effort to weaken the ICC's reach. It's this sort of hypocrisy — courts for my enemy, immunity for me — that frustrates so many.
"There seem to be a small coterie of African leaders who are obviously somewhat concerned about prying eyes and less concerned about protecting their people from mass atrocities," Simon Adams, executive director of the Global Centre for the Responsibility to Protect, told VICE News.
The AU has launched a team of investigators to look into possible crimes against humanity in South Sudan, where fighting broke out in December and has since largely split along ethnic lines. The extent of their findings and whether they share them as part of a potential ICC investigation will be an important measure of the AU's willingness to cooperate with international bodies. It doesn't help matters, however, that Museveni, top dog at the AU, is fighting on the side of South Sudanese president Salva Kiir.
For now — and with mixed results — the main way the AU has attempted to prove its ability to police its member states has been through peacekeeping operations. But so many of the continents interventions, however successful, have historically been wiped away due to lack of accountability and impunity for perpetrators.
"If the AU wants to prove its justice bona fide, it should ensure that no one, no matter what their position, is above the law," Stephen Lamony, Senior Advisor for AU, UN and Africa situations at the Coalition for the International Criminal Court told VICE News. "The decision to give leaders immunity certainly seems to be driven by leaders' desire to evade justice."
Follow Samuel Oakford on Twitter: @samueloakford