The African Union, the ICC and Universal Jurisdiction: Some Recent Developments

Over the last few years, the African Union (AU) Assembly, (composed of Heads of States and Governments), has concerned itself with a number of issues relating to international criminal law (see previous posts by me here, here, and here; and by Max Du Plessis and Chris Gevers here and here). Last month, the AU Assembly held its 19^th Summit and continued the trend of making decisions with regard to international criminal justice (see here for the full text of the Assembly decisions). Earlier this week, Max Du Plessis wrote about the decision of the AU Assembly at this summit to postpone consideration of a draft protocol that would amend the Statute of the African Court of Human Rights and Justice to give it jurisdiction to try international crimes. As has now become usual, the AU Assembly, at this latest summit, also adopted decisions on the International Criminal Court and on the Abuse of the Principle of Universal Jurisdiction. Both of these decisions contain new developments from previous decisions which are analysed below. There is a call for African States to conclude bilateral immunity agreements and the AU has adopted a Model Law on Universal Jurisdiction.

The Impact of the ICC on the Venue of the Summit

The question of where the AU summit would be held was dominated by the fallout of the strained relationship between the AU and the International Criminal Court. The venue of the Summit was changed from Malawi to Addis Ababa, the seat of the AU, just one month before the meeting as the AU refused Malawi’s request for Sudanese President Omar Al Bashir not to be invited to the meeting. Malawi, a party to the Statute of the International Criminal Court, stated that it had an obligation to arrest Bashir, who is wanted by the ICC, were he to visit Malawi. Malawi had allowed Bashir to attend a meeting in Malawi in Oct 2011 and the ICC Pre-Trial Chamber held in December 2011 that Malawi had acted contrary to its obligations under the ICC Statute (see earlier posts on this issue here, here, and here). Earlier this year, there was a change of policy by the newly elected Malawian President Joyce Banda and the Malawi government stated that there was risk of damaging relations with its donors were it not to comply with the decision of the ICC to arrest Bashir. As a consequence of Malawi’s insistence that Bashir was not welcome, the AU decided to move the meeting to Addis Ababa.

The AU, the ICC and the Immunity of State Officials

As has been the case in the past, the AU has not objected to all ICC proceedings. The AU does not oppose ICC proceedings in cases where the country in question does not oppose ICC proceedings. So the AU says nothing about those proceedings arising from the Democratic Republic of Congo, the Central African Republic, Uganda or Cote d’Ivoire. The focus of opposition to ICC proceedings has always been, and continues to be, those ICC proceedings directed against current African State leaders. The latest AU Assembly Decision on the ICC [Assembly/AU/Dec.419(XIX) at pp.9-10 of this link] reiterates the usual AU request for the United Nations Security Council to defer ICC proceedings against Sudanese President Bashir. Unlike the decision at the last summit there is also an express reiteration of the request for the ICC proceedings arising out of the Kenyan situation to be deferred. Also, unlike the decision from the summit of July 2011 (when Gaddafi was still in power), there is no call this time for a deferral of the ICC’s Libyan proceedings though there is an endorsement of Libya’s decision to hold its own national prosecutions, a point which goes to the admissibility of the ICC proceedings in the Saif Gaddafi case (on which see previous post).

One might say that the AU Assembly’s focus on ICC proceedings involving current leaders is self-serving and intended to protect African leaders from prosecutions by the ICC. Or it may be that African leaders are arguing to preserve points of principle: (i) the immunity of senior state officials, which enables the efficient conduct of diplomacy; and (ii) preserving the ability of national and international institutions to work towards peaceful transitions from situations of conflict and violence. It may be that both considerations are at play.

The AU is particularly exercised by the immunity issue. It is not satisfied by the decision of the ICC Pre-Trial chamber on the issue of Bashir’s immunity (a decision that many, including me, are critical of). At this latest summit, the AU Assembly has endorsed a recommendation by African Ministers of Justice/Attorney Generals for the UN General Assembly to request an advisory opinion from the International Court of Justice on the question of immunities of Heads of States and other senior officials of States that are not parties to the ICC. It remains to be seen whether African States would follow through on this proposal. Were the request to be made by the General Assembly, the ICJ would have jurisdiction to deal with the matter Statute ( a matter I touch on in this previous post). However, there might be questions as to whether the ICJ should exercise the discretion it poses not to render an opinion. The request would, in effect, be asking the ICJ to give a decision that is different from that reached by the ICC. This would not be a reason in and of itself for the ICJ to refuse the request, though I am sure it would give some pause. It would not be the first time, nor I guess the last, in which the ICJ would be asked to reach a decision contrary to that of another international tribunal. The Genocide Convention case (Bosnia v. Serbia) is the most famous case of the ICJ considering the same issue by another international tribunal (the ICTY). The recent Habre Case (Belgium v. Senegal) is another one (as there had been previous proceedings in the ECOWAS Court of Justice and the UN Committee Against Torture).

A new feature of the AU Assembly decisions on the ICC is a call which states that:

“for effective reliance on Article 98 of the Rome Statute, African State Parties to the Rome Statute of ICC and African non-State Parties to consider concluding bilateral agreements on the immunities of their Senior State officials.”

It is not clear precisely what is being called for here. In particular, it is not clear whether these proposed agreements are intended to take advantage of Art. 98(1) of the ICC Statute regarding “obligations under international law with respect to the State or diplomatic immunity”, or rather of Art. 98(2) which deals with “obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court”. If the focus is on the latter, the call could be regarded as encouragement for African States to embark on a programme of agreements similar to those concluded by the United States under the Bush Administration with the intention of taking advantage of Article 98(2) of the ICC Statute.

However, it must be noted that Art. 98(2) deals with consent of a sending State, so agreements would only be effective under that provision where the person being sought has been sent by one State to another. That provision does not cover persons on private visit or who are not sent. However, once the sending requirement is met I do not think there is any reason why such agreements would not fall under Art. 98(2).

Since the ICC Pre-Trial Chamber has held that customary international law does not provide immunity for Heads of States before international tribunals, the recent call by the AU might be regarded as call to clarify by treaty that such immunity is available. Such a treaty would circumvent the reasoning of Pre-Trial Chamber. It seems to me that there is no reason why such a treaty provision would not fall within Art. 98(1). After all, one would assume that the treaty provisions like the Vienna Convention on Diplomatic Relations and treaties providing immunity to State representatives to international organizations (eg the UN General Convention on Privileges and Immunities) fall within Art. 98(1). One could argue that Art. 98(1) only applies to such States and diplomatic immunity as existed at the time when the Rome Statute came into force. A similar argument has been made with regard to Art. 98(2) agreements but the argument is unpersuasive.

AU Model Law on Universal Jurisdiction

At this latest Summit, the AU Assembly once again adopted a decision on the Abuse of the Principle of Universal Jurisdiction [Assembly/AU/Dec.419[XIX)], in which it called for member States to use the UN General Assembly debate on universal jurisdiction to express their concerns. They also reiterated a previous decision that “warrants of arrest issued on the basis of the abuse of principle of universal jurisdiction shall not be executed in any Member State.” Despite the AU’s repeated concern with the application of universal jurisdiction, mainly by European States against African leaders, the AU has not rejected the principle of universal jurisdiction. In fact, it previously endorsed the view that universal jurisdiction is a principle of international law (see Assembly/AU/ Dec.199(XI)).

 In May, African Ministers of Justice and Attorney Generals recommended the adoption of an African Model National Law on Universal Jurisdiction over International Crimes.  At its latest summit, the AU Assembly

“ENCOURAGES Member States to fully take advantage of this Model National Law in order to expeditiously enact or strengthen their National Laws in this area”.

Oddly, this statement is not to be found in the decision on the Abuse of Universal Jurisdiction but rather in the decision on the ICC.

Since African States have been complaining about the abuse of universal jurisdiction, it is a bit strange to see them pushing, through this Model Law, the boundaries of the crimes covered by that principle. The Model Law provides for universal jurisdiction over not only genocide, crimes against humanity, war crimes and piracy, but also trafficking in narcotics and terrorism. Although, the Model Law utilizes the definition of crimes against humanity and war crimes found in the ICC Statute, Art. 9(f) of the Model Law expands the definition of genocide by including “Acts of rape that are intended to change the identity of a particular group.” Also though the UN anti-terrorism conventions include aut dedere aut judicare principle, which allows a form of universal jurisdiction, the Model Law does not simplify codify the crimes provided for in those treaties but uses a general, broader, definition of terrorism.

Furthermore,the Model Law provides for universal jurisdiction not only over principal offenders but (under Art. 15) also over aiders and abetters, accesories before and after the fact as well as those who participate in conspiracies to commit the offences listed. Thus, under the Model Law, universal jurisdiction would be permitted with respect to the recent US case of US v. Ali dealing with US jurisdiction over those on dry land who facilitates piracy. Readers will recall that Douglas Guilfoyle discussed this case in a recent post which led to a terrific discussion about the scope of universal jurisdiction for those facilitate piracy.

Under, Art. 4(1) of the Model Law national courts will have universal jurisdiction over the offences in the law provided that the accused person “shall be within the territory of the State at the time of the commencement of the trial.” This means that there is no requirement for the person to be within the jurisdiction at the time when investigation is commenced. A State can commence an investigation and either wait for the person to come within its territory or seek extradition of an accused person. All that is excluded is an in abstentia trial. There is a requirement in Art. 4(2) for courts to “accord priority to the court of the State in whose territory the crime is alleged to have been committed, provided that the State is willing and able to prosecute.” This is an endorsement of the view that universal jurisdiction is subsidiary to the principle of territoriality. However, universal jurisdiction is not made subsidiary to the principle of nationality. So if officials of State A were accused of war crimes in State B and it was sought to prosecute them in State C, State B would get the first chance to prosecute. State C would not be required to defer to the national State of the officials – State A.

One of the objectives of the Model Law, according to Art. 3(f), is to “Give effect to immunities enjoyed by foreign State officials under international law”. Therefore, Art. 16(1) provides that:

“Foreign state officials entitled to jurisdictional immunity under international law shall not be charged or prosecuted under this law, except in situations where these crimes are covered by a treaty to which the State and the State of nationality of such officials are parties and which prohibits immunity”

This provision is recognition that immunity does apply to State officials even when there are allegations of international crimes (as the ICJ recognised in the Arrest Warrant case). However, the provision does not specify precisely when those international law immunities are to be accorded. The provision is drafted in such a way that reference must be made to general international law and any applicable treaties.

The Model Law and its endorsement by AU leaders contributes to the State practice regarding the principle of universal jurisdiction. Even if the Model Law is not used by States, acceptance of the Model Law by the AU Assembly is also evidence of the opinio juris of African States regarding the application of the principle. Thus, it will be difficult for African States to continue to insist that there is a requirement that investigations and arrest warrants based on universal jurisdictions can only commence or be issued when the person is physically present when they have endorsed a Model Law that does not support that principle. By contrast, they will also be able to point to their statements that immunity may remain applicable even when persons are accused of an international crime.