Disclosure: I have acted as consultant to the Commission of the African Union on the question of the relationship between African States and the ICC. Note: This is a long post. If you’re interested in whether Bashir is entitled to immunity under the ICC Statute I try to provide answers at the end.
As I discussed in a previous post (see here) there has been tension between African States and the ICC regarding the indictment of Sudanese President Omar Al Bashir. It is reported (here and here) that the Assembly of the African Union (which meets at the level of Heads of States and Governments), has adopted a resolution calling on all African States not to cooperate with the International Criminal Court on the Bashir case. In the resolution:
“(The African Union) decides that in view of the fact that a request of the African Union (to defer al Bashir’s indictment) has never been acted upon, the AU member states shall not cooperate persuant 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,”
This, of course, means that the AU Assembly is calling on States not to take steps to arrest Bashir and not to allow the ICC to conduct investigations on their territory (eg interviewing victims) relating to the Bashir case. The resolution arises out of anger not just at the fact that a sitting head of State has been indicted but because the UN Security Council has failed to take up the African request for deferral of the case under Art. 16 of the Rome Statute. In some ways, the resolution takes a middle position among the range of views that have been taken by African States. Some States have taken a hardline position and would have liked to push for African States to the ICC Statute to withdraw or at least consider withdrawing from the Rome Statute. At the other end of the spectrum, others would have preferred a reiteration of the request for deferral.
There is some confusion in press reports about whether the text of the current resolution was adopted unanimously or not. As I noted in my earlier post, there is significant support for the ICC among African States. It is noteworthy that this resolution confines its call for non-cooperation solely to the Bashir case. ICC investigation of the other situations before the ICC continues to have the support of the countries (Uganda, Democratic Republic of Congo, Central African Republic) where those situations arise from. Also on the same day that the AU adopted this resolution, Kenyan officials met with the ICC Prosecutor (see here and here) and agreed that if the Kenya Parliament is unable to adopt legislation to establish a tribunal to deal with 2007 post election violence in that country, the government would refer the situation to the ICC.
The point that African States are not to be seen as rejecting the ICC as an institution or the Rome Statute as a treaty can also be seen from the fact that the AU has sought to use mechanisms within the Rome Statute in order to halt the Bashir case. First, there was the attempt to use an Art. 16 deferral. Now, this resolution justifies the call for non-cooperation on the basis of Art. 98 dealing with immunity. This leads to the question whether Art. 98 does indeed permit States parties to the Statute to refuse cooperation on the basis of the immunity of a Head of State. Read the rest of this entry…