African Union v International Criminal Court: episode MLXIII (?)

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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position.

Certainly, the ICC’s inconsistent stance on the effects of a UN Security Council referral on Al Bashir’s immunity has further muddied already murky waters, as has the adoption of the Malabo Protocol, which posits immunity for incumbents, and which would create a criminal chamber for the African Court of Justice and Human and People’s Rights in direct competition with the ICC. The decision of the AU Assembly to seek an advisory opinion from the ICJ is therefore a welcome development in a quarrel that thus far has had a highly detrimental impact on the administration of international criminal justice. The complexity of the immunity issue has been addressed at length elsewhere and hence will not be rehashed in this post. Suffice it to note that the ICJ, in the Arrest Warrant case, had previously ruled that incumbent officials – while enjoying immunity from prosecution in foreign national courts – “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction“ (para. 61). However, as is well known, a difficulty arises when the Court in question claims jurisdiction over a non-state party – as in the case of President Al Bashir of Sudan. The question of how the ICJ will position itself on the issue is as interesting as the question of how the AU will respond to the ICJ’s opinion, should it bolster the ICC’s position. An ASP insider confirmed that she had personally witnessed a high-level AU representative saying that African states would abide by the advisory opinion handed down by the ICJ. While the ICC has repeatedly pronounced itself on the issue of immunities, there are two good reasons for additionally involving the ICJ. First, as argued above, the ICC’s decisions on this issue have been somewhat inconsistent and therefore not fully persuasive, drawing criticism not only from the usual suspects but also from commentators beyond the AU. Secondly, considering the legitimacy crisis of international criminal justice, the opinion of an objective third party will hopefully produce some clarity, legal certainty, and thereby strengthen the international rule of law.

Yet the process of obtaining an advisory opinion from the ICJ will be lengthy one – first, the African group must lobby to win a majority within the UN General Assembly and then the ICJ will have to decide whether or not it will offer its opinion. In the meantime, a number of contentious issues linger, which threaten the “re-commitment of African states to the ICC” described by Fatou Bensouda at last year’s ASP. This re-commitment, which Bensouda considers a “significant development”, was fostered by a confluence of variables, the most important one certainly being the “Kenya factor”, i.e. the dropping of the charges against President Kenyatta and other high-ranking Kenyan officials. Yet “softer” factors were also relevant, such as the intensified outreach efforts by Bensouda as well as Sidiki Kaba’s role as President of the ASP, whose personal engagement led to a more constructive discussion about the issues currently dividing the AU and the ICC. This re-commitment will likely be called into question should the ICC issue arrest warrants for President Nkurunziza of Burundi and other high-ranking Burundian officials. At its recent summit, the AU condemned the opening of ICC investigations into the situation in Burundi. If the ICC decides to go after Nkurunziza, the East African Community will likely rush to his defense. “IGAD and the EAC have been the biggest stumbling blocks in the Burundi crisis”, says Kwamchetsi Makhoka, a political analyst from Kenya. While the backlash is probably not going to be as intense as in the case of Kenya, it will still put a strain on the fragile bonds so carefully cultivated by Kaba, Bensouda and others over the past year.

Yet will the Burundi situation raise the specter of an African mass withdrawal that first shocked the world one year ago? Unlikely. For one, the AU 2017 withdrawal strategy, discussed by Patryk Labuda here, “is actually more of an engagement strategy” as Bettina Wambach, director of the Wayamo Foundation points out. Also, the AU legally not in a position to impose a withdrawal obligation on its members. Secondly, if one reads the fine-print of the withdrawal debate, one will realize that only a handful of states seem to be serious about leaving the ICC – namely Burundi, South Africa, Kenya, and Namibia. With the exception of Burundi, these states are unlikely to follow through with their threats in the near future. With regard to South Africa, observers tend to agree that the withdrawal option is off the table – despite the South African Justice Minister’s statement to the contrary at last year’s ASP. With Zuma losing the leadership of the ANC and now the Presidency to Cyril Ramaphosa –  who previously maintained that South Africa should not leave the ICC – and with all the other domestic problems South Africa currently faces, a relaunch of the withdrawal campaign is not very probable. Kenya in turn has lambasted the ICC for years, yet now that the cases against Kenyatta and associates have been dropped, it no longer sees a need for ditching the court. Kenya also no longer pushes for adding a criminal chamber to the East African Court of Justice – this initiative miraculously disappeared from the EAC’s agenda after the ICC’s charges against Kenyatta were dropped. With Kenyatta being off the hook, many observers believe that the debate about a mass withdrawal is dying. “I don’t see any African leader who is as powerful as Kenyatta in terms of rallying support against the ICC”, another ASP insider told me. Namibia in turn, all the while publicly denouncing the ICC’s “arrogance”, has admitted behind the scenes that it would not be leaving the Court. Another ground for cautious optimism is the fact that the moderates within the AU are increasingly speaking out in favor of the ICC. Nigeria and Senegal sought to push the mass withdrawal issue off the AU summit’s agenda last year, and together with Botswana, Tanzania, and others have issued statements in support of the Court. As Bensouda noted at last year’s ASP: “There is a lot of support within the African Union for the ICC, and this is something that we need to consolidate.”

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Patryk I. Labuda says

March 23, 2018

Nice post.

It might also have been worth exploring the possibility that the ICJ will actually endorse the AU's position? What many people seem to forget is that the AU's position has been consistent and legally sound from day 1 (see here, with Paola Gaeta: By contrast, the ICC's position has been inconsistent and legally flawed (you can't have 4 different, mutually exclusive legal rationales, and always be right). Yet somehow the assumption is that the ICJ will endorse the ICC's outcome-driven case law and reject the AU's legally consistent position? Strange, to put it mildly.

To be sure, I understand why it would be politically controversial to have the ICJ overrule the ICC. But from a legal perspective (and we are lawyers, right?), I find it strange how the default assumption among international lawyers still seems to be that the ICJ will look at the ICC's self-serving and internally incoherent case law and just "rule in favor" of the ICC (all that matters is the result, yes?). At the very least, we should acknowledge that the ICJ will have to reject some of the ICC's theories. The ICC's victory (if that's what it is) will confirm that the ICC was wrong for many years (and therefore the AU was also not wrong), which raises interesting questions about the international rule of law.

I know your post is not about all this, but I just thought I'd draw attention to the broader implications of the ICJ actually ruling in favor of the ICC (which is, in my opinion, hardly a foregone conclusion - on that, see the article above).

Incidentally, I have argued before that the ICC and the AU should both publicly declare they will abide by the ICJ's ruling. This makes a lot of sense from a rule of law perspective. The irony is that we are more likely to get this from the 'rogue' AU than the ICC.

Theresa Reinold says

March 24, 2018

Thank you, Patryk, for this insightful response; I agree - it is by no means a foregone conclusion that the ICJ will share the ICC's position (or rather, one of the various positions advanced by the ICC). Considering the rather conservative stance the ICJ has adopted in the past (f.ex. in the Arrest Warrant case) I wouldn't be surprised if it endorsed the AU's view. I think your proposal of the AU and the ICC a priori declaring compliance with the ICJ's opinion is interesting but politically probably not feasible, neither on the part of the ICC, nor the AU. I think the AU will wait for the ICJ to actually hand down its opinion and then, if it's not in their favor, will likely argue that it's not binding anyways.

Patryk I. Labuda says

March 25, 2018

Thank you for your response, Theresa. I agree the proposal is politically risky. But I fear you might be making assumptions about the AU and what its motivations are.

Let's not forget the AU didn't have to request an ICJ opinion. The path of least resistance would have been to simply continue ignoring the ICC, i.e. African states continue to recognize Al-Bashir's immunity, develop state practice and opinio juris in that sense (regional custom, anyone?), and inveigh against European colonialism if and when the West and the ICC starts to push too hard.

Is it really that simple? Your post suggests not. The AU is not a monolith after all.

So why is the AU doing this? The cynical view is that it's all just a delaying tactic or political opportunism, as you seem to be suggesting in your response. I think that's certainly possible and we should at the very least suspicious of the AU's intentions.

At the same time, the ICJ referral is an opportunity: a legal way out of this impasse. Whether we like it or not, the ICC has little credibility when it comes to Al-Bashir's immunities. In any domestic legal system, a court that issues three decisions, supported by four conflicting legal theories, would prompt a great deal of confusion. In all likelihood, the judges making those decisions would command very little respect, and their peers would seek legal guidance elsewhere.

To be sure, the domestic law analogy only takes us so far. The international legal system has different rules: there isn't a hierarchy of courts, the system only works if states cooperate, etc. I get that.

The AU is no paragon of legal virtue. I don't want to suggest otherwise. But we also have to recognize that the ICC has made too many legal mistakes along the way, and an ICJ referral might actually be its best bet if it wants to find a legal (rather than a political) solution.

African states, acting through the AU, have extended an olive branch - will the ICC play ball? To me, that is the big question going forward.

Hannah Woolaver says

March 26, 2018

Thanks for the interesting post.

Just to add - I wouldn't be quite so confident about South Africa abandoning its efforts to withdraw from the ICC. As you say, the South African representative reaffirmed this intention at the last ASP meeting in December 2017, and at the same time a bill was introduced in the South African parliament to obtain approval for withdrawal (see Thus, there wouldn't be any need to 'relaunch' the withdrawal campaign, as it's never really gone away. Further, Ramaphosa has never had a clear position on the ICC - as Deputy President he mused about the need to focus resources on building continental mechanisms to address African challenges (e.g., So I while I think that there is more reason for optimism post-Zuma, South Africa's withdrawal is still very much a possibility (if not probability).

Theresa Reinold says

March 27, 2018

I think we both agree that a nuanced assessment is in order, and that it would be reductionist to accuse the AU of being the “baddie” in the story and the ICC the “goodie”. True, the AU did not have to request an advisory opinion, and I applaud it for doing so. As for why the AU did it – I’m certainly not insinuating that the organization is a monolithic bloc, composed of authoritarian leaders who are united in their contempt for the rule of law. Actually, putting up a (seemingly) united front in the face of outside criticism is part of the culture of the AU, but this should not distract us from the fact that behind the scenes there is a lot of disagreement, and this is also true for the AU-ICC debate. The resolutions adopted by the AU on the ICC tend to gloss over these disagreements, but that doesn’t mean that intra-organizational dissent doesn’t exist. While there are certainly countries within the AU with poor human rights credentials who are generally uncomfortable with the notion of an independent judiciary, many AU members have worked hard to improve relations with the ICC and are sincerely committed to international criminal justice. I think both the ICC and the AU have made mistakes in the past. The ICC has been amateurish in developing its legal position, and Moreno-Ocampo’s often condescending demeanor towards African leaders certainly didn't help in achieving détente. The reason I suggested that the AU might ignore the ICJ’s opinion if they don’t like it is that African leaders often sign treaties (or, in this case, solicit an advisory opinion) they have no intent of complying with. Sociological institutionalists call this decoupling, and this is actually a rather common phenomenon in Africa, which suggests that one should at least be skeptical when the AU decides to involve the ICJ. But again, the AU has 55 members and while some of them might be rightly suspected of ulterior motives, many others are sincere in their commitment to international criminal justice. So, paraphrasing you, “the big question going forward” is not just how the ICC will react, but also which countries within the AU will gain the upper hand in framing the organization’s response to the advisory opinion (if it comes).

Theresa Reinold says

March 28, 2018

Thank you Hannah (sorry, for some reason I saw your post just now) for alerting me to the article about Ramaphosa and his thoughts on strengthening continental mechanisms. Actually, most of my sources from the region were surprisingly confident that with the change of leadership in SA, the withdrawal is off the table, and I tend to read threats to the contrary as sabre-rattling - one thing I've learned about the AU and its members is that what's being said in public is often very different from what's actually implemented. But I might be overly optimistic. At any rate, it would be a sad day for international criminal justice if SA decided to leave the ICC.

Stephen Chaudoin says

March 28, 2018

Thanks for the post!

I am curious how you think that an ICJ opinion, especially if it went against the preferred positions of some African states would be received?

You said: "Secondly, considering the legitimacy crisis of international criminal justice, the opinion of an objective third party will hopefully produce some clarity, legal certainty, and thereby strengthen the international rule of law."

Would African states not react negatively to an adverse ICJ opinion in the same way that they reacted negatively to ICC investigations they didn't like?

Stephen Chaudoin

Patryk I. Labuda says

March 29, 2018

So, paraphrasing you, “the big question going forward” is not just how the ICC will react, but also which countries within the AU will gain the upper hand in framing the organization’s response to the advisory opinion (if it comes).

I couldn't agree more. Thanks for the interesting exchange!

Theresa Reinold says

April 1, 2018

Thank you, Stephen, this is an interesting question indeed. I’m a bit uncomfortable speculating, but based on the information that’s available at present, I would say that an ICJ advisory opinion is of a different quality than an ICC intervention, and will thus probably exert a somewhat greater compliance pull. Why? First of all, it’s the AU itself that will solicit – through the UNGA – the advisory opinion. The Al Bashir case, by contrast, which sparked the whole AU-ICC controversy, was “forced” upon the AU by a Security Council referral of the situation in Darfur. So, it’ll obviously be a lot harder to argue against "illegitimate interference" in the case of an ICJ intervention that the AU itself initiated. Secondly, as pointed out earlier, the ICC has undermined its own legitimacy by not getting its legal reasoning straight and by disproportionately focusing on Africa, all the while neglecting situations of concern in other parts of the world. The ICJ doesn’t come with the same kind of baggage and thus I would assume that its opinion will be received with more acceptance than the ICC’s interference. But again, everything depends on the political dynamics within the AU.
I think the bigger theoretical question underlying the empirics we’re discussing here is one about the psychology of legitimacy, and that’s one international courts have struggled with for decades: Will states ditch international courts as soon as the latter go against their vital interests? I’ve touched upon this issue in another post over at Völkerrechtsblog:
, without, however, being able to offer a conclusive answer. According to Tom Tyler (who’s written about law in the domestic context), the answer would be no. Tyler argues that if the law is being applied in a fair and even-handed manner, then it’ll be supported by winning AND losing parties alike. However, social identity theorists would argue that regardless of whether or not a court’s judgments/opinions are even-handed and fair, they will always be perceived as unfair by those whose social group loses and as fair by those whose social group wins. This is certainly a question that can only be answered empirically, but looking at the ICTY’s experience for instance, or the early reception of the Nuremberg trials in post-war Germany, and other examples from the history of international criminal justice I think there’s some indication that SIT might be right (although as a student of international law and as a human being I obviously hope that they're wrong).