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The ICC’s immunity debate – the need for finality

Published on August 11, 2017        Author:  and

In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means.  Read the rest of this entry…

 
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The African Union’s Collective Withdrawal from the ICC: Does Bad Law make for Good Politics?

Published on February 15, 2017        Author: 

A number of news outlets reported last week that the African Union (AU) had adopted a strategy for collective withdrawal from the International Criminal Court (ICC) (see here, here and here). This follows withdrawals by three African states late last year, which in turn generated much debate at last November’s Assembly of States Parties and yet more calls for a re-assessment of the relationship between Africa and the Court. Although the prospect of collective withdrawal has been in the works for some time, what emerged from last week’s AU summit appears to be a politically benign and legally confused form of collective resistance. Despite the alarmist headlines, the withdrawal strategy may symbolize the high-water mark of AU opposition to the ICC.

Africa v. the ICC

The conflict between the ICC and the AU has been in the news for many years. It is hard to keep track of all the denunciations, threats and accusations that various African state representatives have leveled at the Hague-based court and yet, even by these standards, the year 2016 seemed to mark a nadir in the ICC-Africa relationship. In January, the AU requested the open-ended committee of Ministers of Foreign Affairs to develop ‘a comprehensive strategy’ for ‘collective withdrawal’, which would serve as guidance to African states wishing to re-assess their relationship to the ICC. After an inconclusive mid-year summit in Kigali in July 2016, where a few African states expressed doubts about withdrawal, the international justice community experienced something of a rude awakening when three states withdrew from the Rome Statute in quick succession. Burundi went first, followed by South Africa and the Gambia. While the precise trigger for their sudden departures in October 2016 remains a mystery, the taboo of treaty withdrawal had been shattered and a re-assessment of the ICC-Africa relationship acquired renewed urgency. Read the rest of this entry…

 
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