After deciding the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (about which I and others will have more to say on the blog soon), there is the prospect of the International Court of Justice (ICJ) being asked to decide another immunity case. At the summit of the Assembly of the African Union held last week in Addis Ababa, Ethiopia, African Heads of States and Heads of Government requested:
“the [AU] Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”
As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the International Criminal Court. In the latest meeting, the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also ” urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.
The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.
The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.
AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity
Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,
“the African Union Commission expresses its deep regret that the decision has the effect of:
(i) Purporting to change customary international law in relation to immunity ratione personae;
(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;
(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”