The African Union passed a resolution on July 3 expressing a refusal on the part of its members to cooperate in the arrest and transfer of the President of Sudan to the International Criminal Court.
Confining its call for non-cooperation solely to the Bashir case, the resolution adopted at the end of the 13th African Union Summit of Heads of States says the AU “deeply regrets” that the United Nations ignored its previous demand for the ICC to postpone the arrest warrant against President al Bashir. The resolution states that the African Union “decides that in view of the fact that a request of the African Union has never been acted upon, the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC.”
The African Union made the request for a postponement in July 2008, invoking Article 16 which allows the UN Security Council to suspend prosecutions for a period of 12 months that can be renewed indefinitely. The call for a deferral was made on the basis of ensuring “that the ongoing peace efforts are not jeopardised,” and that “in the current circumstances a prosecution may not be in the interest of the victims and justice.” There were also fears – shared by others outside the AU and later realised with Bashir’s expulsion of aid groups – that the indictment would undermine efforts to resolve the ongoing humanitarian crisis. The request followed a previous unsuccessful attempt by China, Egypt and other members of the Arab League to delay the investigation of crimes in Sudan.
Under public international law, the legal force of the AU resolution is questionable. An international treaty ratified by a state is binding on that state unless it decides to withdraw from it altogether. The legality of the resolution would depend on an interpretation – ultimately to be given by the Court itself – of the scope of Article 98 which on its face allows the international law obligations of States parties (such as the respect for head of state immunity) to prevail over a request for surrender by the Court.
The Crimes of War Project and others have argued previously that the most reasonable interpretation of the Court’s Statute is that Article 98 must be understood in conjunction with Article 27, which specifies that no-one can claim immunity before the ICC based on their official capacity. States that have ratified the ICC’s Statute cannot claim immunity from arrest by another country for their officials without violating the spirit of the treaty—and that arguably includes countries such as Sudan who have had the ICC Statute applied to them through a referral by the Security Council. If that is right, then States parties (including 30 African states) are under an obligation to comply with the Court’s request for the arrest and surrender of Sudan’s head of state.
Botswana has confirmed it will not abide by the AU’s decision to ignore the arrest warrant. Foreign Minister Phandu Skelemani revealed that the AU decision had been rushed through without a vote, and countries could not be expected to renege on treaties “because of a sulk.”
The indictment of Bashir has sparked a dramatic about-face in the African Union’s attitude towards the ICC, considering that in its 2004-2007 Strategic Plan, one of its five commitments was to ensure the ratification of the ICC treaty by all countries.
At the summit, the first since the ICC issued an arrest warrant Omar Hassan al-Bashir on charges of crimes against humanity and war crimes over the atrocities in Darfur, a number of African states independently expressed their opposition to the ‘unacceptable practices’ of the ICC - which they accuse of Africa-bias - and their refusal to allow Africa to once again be colonised by Western powers.
“Africa is a continent, we should be able to punish and try our people since we have been dealing with our own problems”, said Gambian President Yahya Jammeh on July 6, adding “I am not saying that there should be impunity for anyone but let there be equal dispensation of justice.” Jammeh also pointed out that no Western head of state had been indicted by the Court: “What is also not acceptable is the fact that any Western country can have a court that can indict an African head of state.”
Libyan leader Colonel Gaddafi led the call to reject the ICC’s “warped justice,” saying that the four African cases currently under investigation by the ICC - which actually has 5 African judges among its ranks - are part of a plot by Western powers. But in a 2005 Public Hearing at the ICC’s Office of the Prosecutor, Ambassador Hlengiwe Mkhize of South Africa referred to these four African cases and said that “rather than indicating an excessive geographical focus on Africa, these facts point to African countries’ concern that serious international crimes be punished.”
At the AU summit, South Africa remained silent and let the resolution pass - despite being a signatory to Rome Statute - giving tacit approval to the decision to ignore Bashir’s arrest warrant although it is legally obliged to co-operate in his arrest.
Archbishop Desmond Tutu of South Africa, one of the directors of the ICC’s Trust Fund for Victims, has criticised African governments for their support of Bashir. Rejecting the sentiment that the ICC is biased against Africa, Tutu wrote that “Justice is in the interest of victims, and the victims of these crimes are African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent.”
And indeed it is only when African governments themselves improve their record of bringing to justice those responsible for mass atrocities that the need for trials in The Hague will disappear, according to Kofi Annan. Writing for the New York Times before the summit, the former UN Secretary-General pointed out that in the case of the DRC, the Central African Republic and Uganda, it was the governments of those countries that referred the cases to the ICC. The reasons for such requests no doubt rested at least in part on the weakness of national legal systems. In the fourth matter before the ICC, the situation in Darfur, it was Security Council intervention that brought the case before the Pre-Trial Chamber. In the 2005 Resolution, there were no dissenting votes. While Algeria abstained from voting, Benin and Tanzania voted in favour of the referral.
The prosecutor of the ICC has actively encouraged self-referrals, and the only such referrals have been from African countries that have been unable to conduct their own prosecutions. The concept of complementarity allows the Court to proceed in a case only if relevant national courts are “unwilling or unable genuinely to carry out the investigation or prosecution.” It is the backbone of the ICC’s jurisdiction.
Last year, in an apparent effort to circumvent the ICC, Sudan and Uganda each attempted to steer their own war crimes investigations. But the notion of complementarity means that the ICC could still intervene where the charges filed in a national court do not match those that would be pursued in The Hague, or where there exist serious doubts about procedural fairness or the competence and partiality of judges.
In August 2008, a month after the arrest warrant was issued against Al-Bashir, Sudan’s justice minister appointed a special prosecutor in each of Darfur’s three states to investigate crimes that occurred from 2003 onwards. But there exist several significant limitations in Sudanese law. The doctrine of command responsibility is not recognised, nor does the criminal law include international crimes such as crimes against humanity and genocide. In 2005, after the ICC prosecutor announced the opening of the Darfur investigation, Sudan established Special Criminal Courts for Events in Darfur for the same purpose. But only 13 cases were brought and all involved low-ranking individuals accused of minor offenses such as theft.
An annex to the peace agreement negotiated early in 2008 between the Ugandan government and the rebel Lord’s Resistance Army was signed, leading Uganda to establish a special tribunal intended to put rebel leader Joseph Kony and other top LRA commanders on trial for war crimes and crimes against humanity. There is a suggestion that Kony would be willing to face the Ugandan court, but will not sign the final peace agreement until the ICC indictment is lifted. The future Ugandan court has come under scrutiny however. Besides the lack of essential facilities such as courtrooms, there are no laws on prosecuting genocide, war crimes and crimes against humanity.
Not all African states affected by violence and atrocities are averse to ICC intervention. On the same day that the AU resolution was passed, Kenyan officials and the ICC Prosecutor agreed that if the Kenyan Parliament fails to adopt legislation establishing a criminal tribunal to deal with the 2007 post-election violence, the government would refer the situation to the ICC .
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Africa and the International Criminal Court (PDF)
Coalition for the International Criminal Court
July 8, 2009
Is the Rift Between Africa and the ICC Deepening?
By Dapo Akande
EJIL: Talk!, July 4, 2009
Africa and the International Court
By Kofi Annan
New York Times, June 29, 2009
Sudan: Khartoum War Crimes Investigations are Mere ‘Window Dressing’
Human Rights Watch
October 20, 2008
Kampala War Crimes Court Under Scrutiny
Institute for War and Peace Reporting
September 29, 2008
The African Union Official Website
The African Union and the ICC
Confining its call for non-cooperation solely to the Bashir case, the resolution adopted at the end of the 13th African Union Summit of Heads of States says the AU “deeply regrets” that the United Nations ignored its previous demand for the ICC to postpone the arrest warrant against President al Bashir. The resolution states that the African Union “decides that in view of the fact that a request of the African Union has never been acted upon, the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC.”
The African Union made the request for a postponement in July 2008, invoking Article 16 which allows the UN Security Council to suspend prosecutions for a period of 12 months that can be renewed indefinitely. The call for a deferral was made on the basis of ensuring “that the ongoing peace efforts are not jeopardised,” and that “in the current circumstances a prosecution may not be in the interest of the victims and justice.” There were also fears – shared by others outside the AU and later realised with Bashir’s expulsion of aid groups – that the indictment would undermine efforts to resolve the ongoing humanitarian crisis. The request followed a previous unsuccessful attempt by China, Egypt and other members of the Arab League to delay the investigation of crimes in Sudan.
Under public international law, the legal force of the AU resolution is questionable. An international treaty ratified by a state is binding on that state unless it decides to withdraw from it altogether. The legality of the resolution would depend on an interpretation – ultimately to be given by the Court itself – of the scope of Article 98 which on its face allows the international law obligations of States parties (such as the respect for head of state immunity) to prevail over a request for surrender by the Court.
The Crimes of War Project and others have argued previously that the most reasonable interpretation of the Court’s Statute is that Article 98 must be understood in conjunction with Article 27, which specifies that no-one can claim immunity before the ICC based on their official capacity. States that have ratified the ICC’s Statute cannot claim immunity from arrest by another country for their officials without violating the spirit of the treaty—and that arguably includes countries such as Sudan who have had the ICC Statute applied to them through a referral by the Security Council. If that is right, then States parties (including 30 African states) are under an obligation to comply with the Court’s request for the arrest and surrender of Sudan’s head of state.
Botswana has confirmed it will not abide by the AU’s decision to ignore the arrest warrant. Foreign Minister Phandu Skelemani revealed that the AU decision had been rushed through without a vote, and countries could not be expected to renege on treaties “because of a sulk.”
The indictment of Bashir has sparked a dramatic about-face in the African Union’s attitude towards the ICC, considering that in its 2004-2007 Strategic Plan, one of its five commitments was to ensure the ratification of the ICC treaty by all countries.
At the summit, the first since the ICC issued an arrest warrant Omar Hassan al-Bashir on charges of crimes against humanity and war crimes over the atrocities in Darfur, a number of African states independently expressed their opposition to the ‘unacceptable practices’ of the ICC - which they accuse of Africa-bias - and their refusal to allow Africa to once again be colonised by Western powers.
“Africa is a continent, we should be able to punish and try our people since we have been dealing with our own problems”, said Gambian President Yahya Jammeh on July 6, adding “I am not saying that there should be impunity for anyone but let there be equal dispensation of justice.” Jammeh also pointed out that no Western head of state had been indicted by the Court: “What is also not acceptable is the fact that any Western country can have a court that can indict an African head of state.”
Libyan leader Colonel Gaddafi led the call to reject the ICC’s “warped justice,” saying that the four African cases currently under investigation by the ICC - which actually has 5 African judges among its ranks - are part of a plot by Western powers. But in a 2005 Public Hearing at the ICC’s Office of the Prosecutor, Ambassador Hlengiwe Mkhize of South Africa referred to these four African cases and said that “rather than indicating an excessive geographical focus on Africa, these facts point to African countries’ concern that serious international crimes be punished.”
At the AU summit, South Africa remained silent and let the resolution pass - despite being a signatory to Rome Statute - giving tacit approval to the decision to ignore Bashir’s arrest warrant although it is legally obliged to co-operate in his arrest.
Archbishop Desmond Tutu of South Africa, one of the directors of the ICC’s Trust Fund for Victims, has criticised African governments for their support of Bashir. Rejecting the sentiment that the ICC is biased against Africa, Tutu wrote that “Justice is in the interest of victims, and the victims of these crimes are African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent.”
And indeed it is only when African governments themselves improve their record of bringing to justice those responsible for mass atrocities that the need for trials in The Hague will disappear, according to Kofi Annan. Writing for the New York Times before the summit, the former UN Secretary-General pointed out that in the case of the DRC, the Central African Republic and Uganda, it was the governments of those countries that referred the cases to the ICC. The reasons for such requests no doubt rested at least in part on the weakness of national legal systems. In the fourth matter before the ICC, the situation in Darfur, it was Security Council intervention that brought the case before the Pre-Trial Chamber. In the 2005 Resolution, there were no dissenting votes. While Algeria abstained from voting, Benin and Tanzania voted in favour of the referral.
The prosecutor of the ICC has actively encouraged self-referrals, and the only such referrals have been from African countries that have been unable to conduct their own prosecutions. The concept of complementarity allows the Court to proceed in a case only if relevant national courts are “unwilling or unable genuinely to carry out the investigation or prosecution.” It is the backbone of the ICC’s jurisdiction.
Last year, in an apparent effort to circumvent the ICC, Sudan and Uganda each attempted to steer their own war crimes investigations. But the notion of complementarity means that the ICC could still intervene where the charges filed in a national court do not match those that would be pursued in The Hague, or where there exist serious doubts about procedural fairness or the competence and partiality of judges.
In August 2008, a month after the arrest warrant was issued against Al-Bashir, Sudan’s justice minister appointed a special prosecutor in each of Darfur’s three states to investigate crimes that occurred from 2003 onwards. But there exist several significant limitations in Sudanese law. The doctrine of command responsibility is not recognised, nor does the criminal law include international crimes such as crimes against humanity and genocide. In 2005, after the ICC prosecutor announced the opening of the Darfur investigation, Sudan established Special Criminal Courts for Events in Darfur for the same purpose. But only 13 cases were brought and all involved low-ranking individuals accused of minor offenses such as theft.
An annex to the peace agreement negotiated early in 2008 between the Ugandan government and the rebel Lord’s Resistance Army was signed, leading Uganda to establish a special tribunal intended to put rebel leader Joseph Kony and other top LRA commanders on trial for war crimes and crimes against humanity. There is a suggestion that Kony would be willing to face the Ugandan court, but will not sign the final peace agreement until the ICC indictment is lifted. The future Ugandan court has come under scrutiny however. Besides the lack of essential facilities such as courtrooms, there are no laws on prosecuting genocide, war crimes and crimes against humanity.
Not all African states affected by violence and atrocities are averse to ICC intervention. On the same day that the AU resolution was passed, Kenyan officials and the ICC Prosecutor agreed that if the Kenyan Parliament fails to adopt legislation establishing a criminal tribunal to deal with the 2007 post-election violence, the government would refer the situation to the ICC .
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Africa and the International Criminal Court (PDF)
Coalition for the International Criminal Court
July 8, 2009
Is the Rift Between Africa and the ICC Deepening?
By Dapo Akande
EJIL: Talk!, July 4, 2009
Africa and the International Court
By Kofi Annan
New York Times, June 29, 2009
Sudan: Khartoum War Crimes Investigations are Mere ‘Window Dressing’
Human Rights Watch
October 20, 2008
Kampala War Crimes Court Under Scrutiny
Institute for War and Peace Reporting
September 29, 2008
The African Union Official Website
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