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Arresting Al-Bashir: The African Union's Opposition and the Legalities

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/ajicl.2011.0011
Published date01 September 2011
Pages208-235
AuthorSimon M. Weldehaimanot
Date01 September 2011
INTRODUCTION

The International Criminal Court (ICC) has jurisdiction when genocide, war crimes and/or crimes against humanity as defined in the Rome Statute are committed either (1) in the territory of a member state, (2) by nationals of a member state or (3) when the United Nations Security Council (UNSC) acting under Chapter VII of the United Nations Charter refers a specific situation to the ICC. The African Union (AU) has qualms with the third way of acquiring jurisdiction – article 13(b) of the Rome Statute. Some writers have joined the AU's concern, arguing that article 13(b) ‘violates the global constitution’,1

L. Casey and D. Rivkin, Jr., ‘The Limits of Legitimacy: The Rome Statute's Unlawful Application to Non-State Parties’, 44 Virginia Journal of International Law (2003): 63–89 at 64 echoed this view: ‘By claiming the right to subject the citizens of non-party states to the authority of the International Criminal Court (ICC), the 1998 Rome Statute violates the global constitution. That constitution, which is unwritten but real, contains a number of basic principles around which the international community is organized. The two most fundamental of these principles are that: (1) the ultimate authority over the world's affairs is vested in sovereign and independent nation-states; and (2) each of those states is, at least in law, equal. As a result, rules of international law in general, and the authority of international institutions in particular, cannot be imposed—either by treaty or custom—on states that have not consented to them. Although that consent may be implied in certain instances (as when a new customary rule develops over a long period without dissent), under no circumstance can consent be dispensed with altogether. That, however, is precisely what the ICC states parties have done in their efforts to incorporate “universality” into the Rome Statute’; see also G. Danilenko, ‘The Statute of the International Criminal Court and Third States’, 21 Michigan Journal of International Law (2000): 445–94.

seemingly referring to the Vienna Convention on the Law of Treaties (1969) which is widely held as a code of customary international law.2

According to Section 4 of the VCLT (articles 34–6), as a general rule, a treaty does not create either obligations or rights for a third state without its consent.

Even though the ICC is an independent and permanent international criminal court brought into a relationship with the United Nations system by an agreement, it is subjected to some discretionary powers of the UNSC. The latter can stop commencement or proceeding of investigation or prosecution for a period of 12 months, which can be renewed endlessly, by a resolution adopted under Chapter VII of the Charter of the United Nations (UN). The AU has been concerned with this discretion provided under article 16 of the Rome Statute.

Another important feature of the ICC and relevant to subsequent discussions on the AU's position is that the ICC is ‘complementary to national criminal jurisdictions’ and not a substitution. The ICC is required to determine that a case is inadmissible where, among other grounds, the case is being investigated or prosecuted by a state which has jurisdiction over it. However, when such a state is unwilling or unable genuinely to carry out the investigation or prosecution, the ICC can intervene. This is the complementarity or article 17(1) concern of the AU. Another important feature of the Rome Statute relevant to subsequent discussion is the fact that the Prosecutor is given discretion to determine not to start an investigation or prosecution if he or she finds no reasonable basis to do so. There is no reasonable basis if ‘[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’. The AU has issues with the exercise of this article 53 discretion, too.

The fact that the Rome Statute has, on the one hand lifted any kind of immunity as a bar to prosecution and, on the other, seemingly retained immunity from arrest and surrender, is one of the notable and debatable developments on which the AU has issues. Article 27 of the Rome Statute has rendered the notion of head of state immunity irrelevant:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

 During the drafting process, different provisions of the Rome Statute were worked out by different bodies. This was the case with regard to article 27 and article 98 and as a result, article 98 seems to contradict article 27.3

O. Triffterer, ‘Article 27’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft (1999), p. xx.

 Article 98 reads

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

 Seven years after its entry into force, the Rome Statute requires the Secretary-General of the United Nations to convene a Review Conference to consider any amendments to the Statute. The Conference took place in Kampala, Uganda from 31 May to 11 June 2010. In addition to the main agenda of the conference, many countries and even the AU put forward suggestions for amendments to many provisions of the Statute.4

Report of the Working Group on the Review Conference, ICC-ASP/8/20, available at http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/WGRC-ENG.pdf.

 From the AU's side, as discussed below, articles 16, 27, 53 and 98 were initially proposed for amendment but lacked support in the lengthy process of refining agenda items. Still, the AU is seeking amendment of article 16

Part II of this article briefly explains the situation leading to Al-Bashir's arrest warrant. Part III discusses the reaction of the AU. Part IV deals with the obligation to cooperate with the ICC. Part V discusses the merits and demerits of the AU's position. Part VI warns of possibilities for second thoughts and denunciation of the Rome Statute by African states. Part VII makes a case for the wise use of discretionary powers both by the UNSC and the Prosecutor. Part VIII concludes.

 AL-BASHIR AND THE ICC

States parties whose nationals are suspects or on whose territory one or more of the three crimes are committed can trigger the jurisdiction of the ICC (state referral). Referral by the UNSC is a triggering mechanism, too.5

Rome Statute, articles 13, 14 and 15.

The legal ramification of the triggering mechanism is not important. However, in view of the strong political opposition the ICC has faced in its early age, how a case gets to the ICC has become important. So far there are five African situations before the ICC. The first three are referred to the ICC's Prosecutor by respective states (governments in power at present) in accordance with article 14. The fifth one is initiated by the Prosecutor of the ICC proprio motu. The situation in Darfur6

For more on the situation in Darfur, see the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General prepared pursuant to Security Council Resolution 1564 of 18 September 2004 (25 January 2005), available at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf, paras 40–72.

 is referred to the ICC's Prosecutor by the UNSC: the only way of obtaining jurisdiction because Sudan has not ratified the Rome Statute and the alleged crimes were committed by Sudan and in Sudanese territory.7

UNSC Resolution 1593, UN Doc., S/RES/1593 (2005).

Following the Security Council's referral, the ICC Prosecutor formally opened his investigation on 6 June 2005, promising to focus on ‘the individuals who bear the greatest criminal responsibility for crimes committed in Darfur’.8

‘The Prosecutor of the ICC Opens Investigation in Darfur’, ICC Press Release, ICC-OTP-0606-104.

In April 2007, subsequent to the Prosecutor's investigations, the ICC issued arrest warrants for Ahmad Harun, Sudan's Minister of State for the Interior from 2003 to 2005, and Ali Kushayb, a Janjaweed militia leader.9

Prosecutor v Harun and Al Abd-Al-Rahman, Case No. ICC-02/05-01/07 (27 April 2007), Decision on the Prosecution Application under Article 58(7) of the Statute, at 80–8 and 95–103.

 Then, on 14 July 2008, in light of the involvement of the President of Sudan (Al-Bashir) in the conflict in Darfur and his continued obstructions of the ICC's prosecution of Sudanese officials, the Prosecutor applied for his arrest warrant.10

Prosecutor v Omar Al Bashir, Case No. ICC-02/05-01/09 (4 March 2009), Warrant of Arrest for Omar Hassan Ahmad Al Bashir.

 On 4 March 2009, the ICC's Pre-Trial Chamber I determined that there were...

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