The African Union takes on the ICC Again: Are African States Really Turning from the ICC?

The African Union takes on the ICC Again: Are African States Really Turning from the ICC?

In the latest summit meeting of the African Union (AU) held in Malabo, Equitorial Guinea, the AU Assembly of Heads of States and Governments has reiterated its opposition to a number of prosecutions at the International Criminal Court (ICC). Readers will recall that all the situations under investigation and prosecution at the ICC relate to African countries. While half of these situations were referred to the ICC by the African States themselves (Democratic Republic of Congo,Uganda, Central African Republic), the AU objected to the decision of the ICC to prosecute Sudanese President Omar Al Bashir. It has called on the UN Security Council to act under Article 16 of the Rome Statute and defer proceedings against Bashir. It has also decided that African States should not comply with the ICC with regard to the Bashir case, including a call for non-compliance with the arrest warrant for Bashir (see previous posts here). In addition, the AU has also called on the UN Security Council to defer the investigations and prosecutions in the Kenya situation (see posts by Max du Plessis and Chris Govers here and here). At the latest AU summit, the AU Assembly has reiterated these calls with regard to the Bashir case and the Kenyan situation. It has now also also called on the Security Council to defer the investigations in Libya and called on AU members not to cooperate with the ICC with regard to the recent arrest warrant for Gaddafi, his son and the Libyan intelligence chief (on which see this post).

So the tension between the AU and the ICC still seems relatively high and is worrying given the fact that the African regional group is the largest grouping among ICC States parties. However, the picture is mixed and all is not doom and gloom. Despite these AU decisions there are still positive signs of support by African States for the ICC. Firstly, one should recall that those African States that have “self-referred” matters to the ICC continue to support ICC prosecutions and to cooperate with the Court. Indeed, the AU itself has not called for non-cooperation with regard to those situations. Secondly, African States have continued to ratify the Rome Statute, the latest of which is Tunisia. Also Cote d’Ivoire as a non party has recently reconfirmed its acceptance of ICC jurisdiction over events in that country. Thirdly, even with regard to Sudan, the AU has not called for deferral of prosecutions in (or non-cooperation with the ICC with regard to) the entire situation. It has only singled out the Bashir case which is only one of the prosecutions with respect to Darfur. Fourth, the position of African States is not solidly in support of the AU position with regard to the cases where it has called for non-cooperation. Some African States have taken a different view and consistently done so. Botswana has probably been the most vocal against the AU decisions on these issues. Just days after the recent AU decision, the Goverment of Botswana issued a statement where it rejects the AU Assembly position, “reiterates her position in support of the [ICC] warrant of arrest and  ”calls on fellow members of the AU to support the ICC in carrying out its mandate to apprehend the Libyan leader, as a critical step towards alleviating the plights of the Libyan people, and paving the way for a new democratic dispensation in that country.”

There have been some questions as to whether AU Assembly decisions on this issue impose obligations on AU Members. With regard to Bashir’s visits to some African members States, the AU Assembly has now:

reaffirmed that by receiving President Bashir, the Republic of Chad, Kenya, and Djibouti were discharging their obligations under Article 23 of the Constitutive Act of the African Union and Article 98 of the Rome Statute as well as acting in pursuit of peace and stability in their respective regions.

This is an attempt to clarify that AU decisions are binding on members. Assuming that this is in fact the case (though it is not explicit from the AU Constitutive Act), AU members that are parties to the Rome Statute then have conflicting obligations under the AU Constititiuve Act and under the Rome Statute. How, if at all is this conflict to be resolved. This question was discussed in some detail in another post by Max du Plessis & Chris Gevers. It may well be that it cannot be resolved. If such a conflict does exist, it is not the case that one obligation prevails over the other as a matter of law. AU members will simply be in a position where they have to breach one of their obligations and will have to accept legal and political responsibility for such breach. The reference to Art. 98 of the Rome Statute also suggests that the AU conceives of a further conflict of obligations. Article 98 which deals with immunity does not actually itself impose obligations on States (as it is directed at the ICC itself). However, the suggestion is that AU takes the view were AU members to implement the Bashir arrest warrant they would be acting in breach of their obligations under customary international law to accord head of State immunity to President Bashir. I have discussed this issue numerous times here so I won’t go into the substance of the argument. But, if there would be a breach of the customary law obligation to accord immunity, there is no principle in international law that would mean that ICC obligations prevail over this customary obligation to a non-ICC party. The Sudan situation has been referrred to the ICC by the UN Security Council but the UN Security Council does not impose obligations on ICC Members to comply with ICC decisions. That obligation on ICC members comes only from the Rome Statute. So one may not resolve the conflict by reference to the higher position in international law of UN Charter obligations.