The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability
At its 30th summit in January 2018, the African Union (AU) decided to approach the United Nations General Assembly (UNGA) to seek an advisory opinion from the International Court of Justice (ICJ). Kenya has made a formal request that this matter be placed on the agenda of the UNGA in September 2018. The subject matter of this legal opinion relates to the immunities of sitting heads of state before the International Criminal Court (ICC).
This is a period of intense scrutiny of the ICC, on the 20th anniversary of the Rome Statute. The credibility of the Court has been called into question, due to the seemingly overwhelming focus on Africa. The failure of permanent members of the United Nations Security Council (UNSC) such as China, Russia, and the United States to sign up to the Rome Statute, as well as the referral and deferral powers of the UNSC, fuel allegations of bias. There are increasingly calls for states to withdraw from the Rome Statute, including by the AU. In the Philippines, the commencement of an ICC preliminary examination into the "war on drugs" may entail scrutinizing the actions of a sitting head of state. It has therefore initiated the process to withdraw from the Rome Statute.
Antecedents: The AU and the ICC
The highest number of state parties to the Rome Statute from any region are from Africa. Most of the situations under investigation also pertain to Africa. It is worth noting, however, that a significant number are a result of self-referrals and at the Prosecutor's initiative.
The AU supported the establishment of the ICC. However, the relationship between these institutions is now fraught. A key reason is the indictment by the ICC of the head of state of Sudan, Omar Al-Bashir, and repeated calls for his arrest.
Based on a referral by the UNSC in March 2005, the Office of the Prosecutor of the ICC commenced an investigation into the situation in Darfur, Sudan. Warrants of arrest for Al-Bashir were issued in 2009 and in 2010 (on appeal), with three counts of genocide, two counts of war crimes, and five counts of crimes against humanity. Despite the arrest warrant, Al-Bashir has travelled to many countries within the continent—and outside—with no consequences.
Sudan is not a state party to the Rome Statute and is a member of the AU. The AU urged the UNSC to defer the ICC proceedings against Al-Bashir due to the peace process in Sudan. As the request for deferral was ignored, the AU decided that member states should not cooperate in the arrest and surrender of Al-Bashir. In 2012, the AU Assembly requested the AU Commission to consider seeking an advisory opinion from the ICJ, which was eventually not pursued.
These actions have been coupled with demands by the AU for a mass withdrawal from the ICC. Thus far, only Burundi has withdrawn from the ICC. While South Africa initiated withdrawal proceedings, due to a High Court decision, it was forced to revoke its notification of withdrawal. Gambia deposited its notification of withdrawal, but subsequently reversed the decision after a change in administration. There are still supporters of the ICC among AU members, including Botswana, Ghana, Nigeria, and Tanzania.
The Dispute: Head of State Immunity and the Rome Statute
There are two fundamental—and related—questions at the heart of the dispute: whether immunities granted as a matter of customary international law to a head of state may be waived by a treaty, in this case the Rome Statute; and the impact of a referral by the UNSC as it pertains to the relationship between Articles 27 and 98(1) of the Rome Statute.
In the Arrest Warrant Case of 11 April 2000 (Democratic Republic of Congo v. Belgium), the ICJ assessed immunity from prosecution for an acting minister of foreign affairs, finding that absolute immunity for heads of state from criminal prosecution in a domestic court exists under customary international law. However, such immunities may not bar criminal prosecution in all cases, such as before an international court with jurisdiction, including the ICC. When a state has agreed to the obligations of an international treaty that waives immunity, such as the Rome Statute, this may fall within the exception pointed out by the ICJ. However, there is still scope for confusion based on the treaty provisions.
Article 27 of the Rome Statute stipulates that immunities attaching to the official capacity of a person shall not bar the jurisdiction of the court. However, Article 98(1) also provides that the Court may not proceed with a request for surrender, if this would require the requested state to act inconsistently with international law obligations pertaining to immunity of officials in relation to a third state. Article 98 is interpreted to apply to non-state parties, as they have not agreed to waive immunities per Article 27. The question is whether this interpretation holds true even in the case of a referral to the ICC.
The UNSC referral of Sudan is based on Chapter VII powers of the UN Charter, and it may be argued that such a referral results in a waiver of immunities under customary international law, in keeping with Article 27. However, the AU argues that only those states that have agreed to be bound by the Rome Statute can waive immunities granted under customary international law. The position of the AU is that Article 98(1) recognizes that the Rome Statute cannot remove an immunity granted under international law to a non-state party, and that a referral by the Security Council indicates the intention that the entire statute apply, including Article 98. Therefore, heads of state of non-state parties should be accorded immunity, with no ensuing obligation on a state party to arrest or surrender such an official.
Decisions by the ICC relating to the lack of cooperation by AU member states in failing to arrest and surrender Omar Al-Bashir have addressed the question of immunity. However, the reasoning of the Pre-Trial Chambers has not always been consistent, undergoing a process of evolution. Simply put, the finding of non-compliance by Malawi and Chad was on the basis that while customary international law provided for head of state immunity, international courts were an exception and hence did not affect obligations under the Rome Statute. In the case of the Democratic Republic of Congo, the Chamber reasoned that while Article 98(1) applied to non-state parties, the Security Council resolution referring Sudan to the ICC "implicitly waived" the immunities of the head of state. This was reaffirmed in the decisions of non-compliance pertaining to Uganda and Djibouti in 2016. In its decision on the lack of cooperation by South Africa, the Chamber reiterated that resulting from a UN Security Council referral, Sudan was to be considered in the position of a state party. Hence, Article 27 would apply, and no immunity could be availed of.
Implications and Consequences
Article 96 of the UN Charter and Article 65 of the ICJ Statute prescribe the powers and manner in which a request for an advisory opinion may be made. Members of the AU will have to lobby the UNGA to vote in favor of a resolution. The 2017 resolution for an advisory opinion relating to the Chagos Islands was the product of concerted diplomatic efforts. A history of legal claims and the subject matter of decolonization eased the passage of the resolution. Hence, persuasion and political will are key to a successful resolution. Assuming a favorable vote, while within the remit of the ICJ to demur to issue an advisory opinion, this is unlikely.
Any potential interaction between the ICJ and the ICC is complex. While both courts are supranational, they have different spheres of operation, including subject matter and jurisdiction. The former is a penultimate criminal court that determines individual responsibility for international crimes, while the latter adjudicates disputes between states. Hitherto, little to no interaction between these institutions has been envisaged. Now, the questions to be put to the ICJ directly relate to legal questions adjudicated upon by the ICC. Would the ICJ in effect function as an appellate court for the ICC, and would this be advisable? There is a diversity of opinion on the feasibility and impact of this.
Domestic courts have also issued decisions pertaining to Al-Bashir, directly addressing the question of immunity. The South African Supreme Court of Appeal and more recently, the Kenyan Court of Appeal have affirmed the duty to arrest Al-Bashir. The decisions have relied on obligations of state parties to the Rome Statute, and customary international law. Arguably, the ICJ could provide greater clarity on aspects of international law that domestic courts may rely on. Such a development may have implications pertaining to the interpretation of international law in domestic courts.
Lastly, Jordan has appealed the ICC Pre-Trial Chamber decision that found it had violated the obligation to arrest and surrender Al-Bashir. In an unprecedented step, the Appeals Chamber has invited interested states, international organizations including the AU, and international law professors to submit briefs. Sudan and Al-Bashir have also been invited to file submissions. This indicates the importance the Chamber places on the legal question, and may yet impact a request for an advisory opinion.
The legal questions at the root of the discord between the AU and the ICC are complex and raise important issues of international accountability and justice. Undoubtedly, clarity in the immunities of heads of state under customary international law and the Rome Statute is to be desired. The course of action contemplated by the AU in requesting an advisory opinion from the ICJ is an inflection point in the relationship between all these institutions. It may have wider implications on international law and international institutions, beyond the scope of the legal question in dispute.
About the Author: Priya Pillai is an international lawyer and consultant, with expertise in international human rights law, transitional justice and humanitarian issues. She has a doctorate from the Graduate Institute, Geneva and over fifteen years legal experience, including at the UN International Criminal Tribunal for the Former Yugoslavia and the International Federation of Red Cross and Red Crescent Societies.
 Assembly of the African Union [AU Assembly] , 30th Ordinary Session, Decision on the International Criminal Court, AU Assembly Doc. Dec.672 (XXX), ¶ 5(i) (Jan. 28–29, 2018), available at https://au.int/sites/default/files/decisions/33908-assembly_decisions_665_-_689_e.pdf.
 S.C. Res. 1593 (Mar. 31, 2005).
 AU Assembly, 12th Ordinary Session, Decision On The Application By The International Criminal Court (ICC) Prosecutor For The Indictment Of The President Of The Republic Of The Sudan, AU Assembly Doc. Dec.221(XII), ¶ 3 (Feb. 1–3, 2009), available at https://au.int/sites/default/files/decisions/9559-assembly_en_1_3_february_2009_auc_twelfth_ordinary_session_decisions_declarations_message_congratulations_motion.pdf.
 AU Assembly, 13th Ordinary Session, Decision On The Meeting Of African States Parties To The Rome Statute Of The International Criminal Court (ICC) Doc. Assembly/AU/13(XIII), AU Assembly Doc. Dec.245(XIII) Rev.1, ¶ 10 (July 1–3, 2009), available at https://au.int/sites/default/files/decisions/9560-assembly_en_1_3_july_2009_auc_thirteenth_ordinary_session_decisions_declarations_message_congratulations_motion_0.pdf.
 AU Assembly, 18th Ordinary Session, Decision On The Progress Report Of The Commission On The Implementation Of The Assembly Decisions On The International Criminal Court (ICC)Doc. EX.CL/710(XX), AU Assembly Doc.Dec.397(XVIII), ¶ 10 (January29–30, 2012), available at https://au.int/sites/default/files/decisions/9649-assembly_au_dec_391_-_415_xviii_e.pdf[hereafter AU Resolution 397] .
 AU Assembly, 28th Ordinary Session, Decision On The International Criminal Court (ICC)Doc. EX.CL/1006(XXX), AU Assembly Doc. Dec.622(XVIII), ¶ 8 (Jan.30–31, 2017), available at https://www.au.int/web/sites/default/files/decisions/32520-sc19553_e_original_-_assembly_decisions_621-641_-_xxviii.pdf.
 Democratic Alliance v.Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016)  ZAGPPHC 53, http://www.saflii.org/za/cases/ZAGPPHC/2017/53.pdf.
 Arrest Warrant Case of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. Rep. 3, ¶¶ 54–55.
 Id. ¶ 61.
 AU Resolution 397, supra note 5.
 Article 96 stipulates that the General Assembly or the Security Council may request an advisory opinion, and "[o]ther organs of the United Nations and specialized agencies," authorized by the General Assembly may also request such an opinion. Article 65(1) of the ICJ Statute stipulates that a legal opinion may be given at the "request of whatever body is authorized" to do so by the UN Charter.
 This has not occurred previously, except in the case of the precursor to the ICJ, the Permanent Court of International Justice.
 Minister of Justice and Constitutional Development v. Southern African Litigation Centre (867/15)  ZASCA 17 (Mar. 15, 2016), available at http://www.justice.gov.za/sca/judgments/sca_2016/sca2016-017.pdf; Attorney General & 2 Or. v. Kenya Section of the International Commission of Jurists, Civil Appeal 105 of 2012 & Criminal Appeal 274 of 2011(Consolidated)(Feb. 16, 2018), available at http://kenyalaw.org/caselaw/cases/view/148746/.
 Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, The Hashemite Kingdom of Jordan's Appeal Against the "Decision Under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar Al-Bashir" (Mar. 12, 2018),available at https://www.icc-cpi.int/CourtRecords/CR2018_01658.PDF.