African Union v International Criminal Court: episode MLXIII (?)

It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal.

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position.

Certainly, the ICC’s inconsistent stance on the effects of a UN Security Council referral on Al Bashir’s immunity has further muddied already murky waters, as has the adoption of the Malabo Protocol, which posits immunity for incumbents, and which would create a criminal chamber for the African Court of Justice and Human and People’s Rights in direct competition with the ICC. The decision of the AU Assembly to seek an advisory opinion from the ICJ is therefore a welcome development in a quarrel that thus far has had a highly detrimental impact on the administration of international criminal justice. The complexity of the immunity issue has been addressed at length elsewhere and hence will not be rehashed in this post. Suffice it to note that the ICJ, in the Arrest Warrant case, had previously ruled that incumbent officials – while enjoying immunity from prosecution in foreign national courts – “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction“ (para. 61). However, as is well known, a difficulty arises when the Court in question claims jurisdiction over a non-state party – as in the case of President Al Bashir of Sudan. The question of how the ICJ will position itself on the issue is as interesting as the question of how the AU will respond to the ICJ’s opinion, should it bolster the ICC’s position. An ASP insider confirmed that she had personally witnessed a high-level AU representative saying that African states would abide by the advisory opinion handed down by the ICJ. While the ICC has repeatedly pronounced itself on the issue of immunities, there are two good reasons for additionally involving the ICJ. First, as argued above, the ICC’s decisions on this issue have been somewhat inconsistent and therefore not fully persuasive, drawing criticism not only from the usual suspects but also from commentators beyond the AU. Secondly, considering the legitimacy crisis of international criminal justice, the opinion of an objective third party will hopefully produce some clarity, legal certainty, and thereby strengthen the international rule of law.

Yet the process of obtaining an advisory opinion from the ICJ will be lengthy one – first, the African group must lobby to win a majority within the UN General Assembly and then the ICJ will have to decide whether or not it will offer its opinion. In the meantime, a number of contentious issues linger, which threaten the “re-commitment of African states to the ICC” described by Fatou Bensouda at last year’s ASP. This re-commitment, which Bensouda considers a “significant development”, was fostered by a confluence of variables, the most important one certainly being the “Kenya factor”, i.e. the dropping of the charges against President Kenyatta and other high-ranking Kenyan officials. Yet “softer” factors were also relevant, such as the intensified outreach efforts by Bensouda as well as Sidiki Kaba’s role as President of the ASP, whose personal engagement led to a more constructive discussion about the issues currently dividing the AU and the ICC. This re-commitment will likely be called into question should the ICC issue arrest warrants for President Nkurunziza of Burundi and other high-ranking Burundian officials. At its recent summit, the AU condemned the opening of ICC investigations into the situation in Burundi. If the ICC decides to go after Nkurunziza, the East African Community will likely rush to his defense. “IGAD and the EAC have been the biggest stumbling blocks in the Burundi crisis”, says Kwamchetsi Makhoka, a political analyst from Kenya. While the backlash is probably not going to be as intense as in the case of Kenya, it will still put a strain on the fragile bonds so carefully cultivated by Kaba, Bensouda and others over the past year.

Yet will the Burundi situation raise the specter of an African mass withdrawal that first shocked the world one year ago? Unlikely. For one, the AU 2017 withdrawal strategy, discussed by Patryk Labuda here, “is actually more of an engagement strategy” as Bettina Wambach, director of the Wayamo Foundation points out. Also, the AU legally not in a position to impose a withdrawal obligation on its members. Secondly, if one reads the fine-print of the withdrawal debate, one will realize that only a handful of states seem to be serious about leaving the ICC – namely Burundi, South Africa, Kenya, and Namibia. With the exception of Burundi, these states are unlikely to follow through with their threats in the near future. With regard to South Africa, observers tend to agree that the withdrawal option is off the table – despite the South African Justice Minister’s statement to the contrary at last year’s ASP. With Zuma losing the leadership of the ANC and now the Presidency to Cyril Ramaphosa –  who previously maintained that South Africa should not leave the ICC – and with all the other domestic problems South Africa currently faces, a relaunch of the withdrawal campaign is not very probable. Kenya in turn has lambasted the ICC for years, yet now that the cases against Kenyatta and associates have been dropped, it no longer sees a need for ditching the court. Kenya also no longer pushes for adding a criminal chamber to the East African Court of Justice – this initiative miraculously disappeared from the EAC’s agenda after the ICC’s charges against Kenyatta were dropped. With Kenyatta being off the hook, many observers believe that the debate about a mass withdrawal is dying. “I don’t see any African leader who is as powerful as Kenyatta in terms of rallying support against the ICC”, another ASP insider told me. Namibia in turn, all the while publicly denouncing the ICC’s “arrogance”, has admitted behind the scenes that it would not be leaving the Court. Another ground for cautious optimism is the fact that the moderates within the AU are increasingly speaking out in favor of the ICC. Nigeria and Senegal sought to push the mass withdrawal issue off the AU summit’s agenda last year, and together with Botswana, Tanzania, and others have issued statements in support of the Court. As Bensouda noted at last year’s ASP: “There is a lot of support within the African Union for the ICC, and this is something that we need to consolidate.”