Updated: Africa's ICC gripes heading to the ICJ?

by Christopher Gevers

After the African Union’s 18 Summit of Heads of State and Government – its first in its ‘magnificent', new Headquarters (courtesy of China) – things remain more or less the same as far as the AU/ICC standoff is concerned, with one notable exception.

The meeting was overshadowed by the failed attempts to elect a Chairperson for the AU Commission, with neither the incumbent Jean Ping, nor the challenger South African Nkosazana Dlamini-Zuma, able to secure the two-thirds majority necessary under the AU’s Constitutive Act, notwithstanding four ballots (the last of which Ping faced unopposed). In the end the Assembly appointed a committee to chart a way forward before the next meeting in June 2012, in the meantime Mr Ping remains in office. The failure to elect Dlamini-Zuma was disappointing. Not only is she a capable candidate with the proven track record, but Mr Ping has been one of the most outspoken critics of the ICC. Although this failure had little to do with the ICC, and everything to do with ideological, linguistic and political divisions on the continent.

Those who were hoping that the ICC might get a smoother ride at the AU in a post-Gaddafi era will be disappointed. Reports suggest that, for the most part, the AU's position on the ICC remains unchanged, with the body repeating its request that the Security Council defer the ICC proceedings in Sudan and Kenya, reiterating its non-cooperation decision in respect of al-Bashir.

There was one important innovation in the AU's ICC position: a request to the AU Commission "to consider seeking an advisory opinion
from the International Court of Justice regarding the immunities of
state officials under international law".

It’s not clear what route African states envisage taking in this regard. The AU Commission itself of course cannot approach the ICJ for an advisory opinion. The General Assembly would be able. The Security Council would arguably be a more appropriate avenue – by virtue of the role it plays in international criminal justice generally, and under the Rome Statute in particular. The question is whether AU could convince the Security Council members to play ball. This seems unlikely, not least of all because Western Powers, including permanent members and ICC states the UK and France, are most likely content with the Pre-Trial Chamber’s position on the subject. What is clear is that the fact that the AU has tasked its Commission with taking this forward
means that the position of Chairperson of the Commission is all the more important for ICC supporters.

As an alternative, the AU might consider using the contentious proceedings approach. For example, Sudan could bring a case against an ICC state party – in particular those countries subject to PTC decisions such as Kenya and Malawi. Sudan has expressed some doubt regarding this approach for fear that it might not get the response it wants from the Court and would be bound by it.

In addition, there is a third option (of sorts): article 119 of the Rome Statute. You will recall that African Ministers of Justice have in the past recommended that the issue of the relationship between articles 27 and 98 be referred to the Assembly of States Parties (ASP) of the ICC in terms of article 119 of the Rome Statute. (See ‘Ministerial Meeting of African States Parties to the Rome Statute of the ICC’ 8 - 9 June 2009 Addis Ababa, MinICC/Legal.) Article 119, which relates to ‘general disagreements’, states that “disputes that do not pertain to judicial functions – that arise between two or more state parties – and relate to the interpretation or application of the Statute”, shall be referred to the ASP who can: (i) seek to settle the dispute itself or; (ii) make recommendations on further means of dispute settlement, notably including referral to the International Court of Justice in conformity with the Statute of that Court.

A number of questions arise regarding this avenue. First and foremost is the question of whether this issue of state cooperation in the arrest of al-Bashir relates to ‘judicial functions’ of the Court or would qualify as a dispute (i) not pertaining to judicial functions, (ii) arising between two or more state parties and (iii) concerning the interpretation or application of the Statute. How this question is answered might well depend on position on takes on the article 27/98 relationship. More specifically, those who favour the article 27 waiver argument would likely see article 98 disputes as concerning the judicial function of the Court. On the hand, those who maintain a strict separation between the exercise of jurisdiction by the Court and cooperation obligations on states parties – such as Gaeta and a few others (including myself) – might consider such a dispute as a non-judicial one, governed by article 119(2) of the Rome Statute. African states seems to think article 119(2) is the appropriate mechanism for resolving this dispute, although unfortunately that will make little difference to most observers. Who decides what is ‘judicial’ and what is ‘other’ is not clear – and quite circular – but if it goes to the ASP an unpleasant north-south divide might emerge. What is more, even if it is determined that article 119(2) – and the ICJ – is the appropriate route, questions remain regarding how this will play out. Chiefly, which two states will be the parties to the dispute.

The route chosen by African states would influence the subject matter of the dispute to be resolved by the Court. If an advisory opinion is sought it could address a broad range of legal issues such as (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of Security Council resolutions referring matters to the Court on (i) and (ii). If African states go the contentious proceedings route then a similarly wide range of issues would be implicated. However, should the article 119(2) approach be taken then the Rome Statute would seemingly require the question posed to the Court to be more narrowly tailored to the question of immunities under the Rome Statute as a dispute “concerning the interpretation or application of the Statute”.

The upshot of the above difficulties (and many more no doubt) mean that there is long way to go before the AU’s concerns regarding the ICC reach the ICJ, if ever. However, I think the resort to the ICJ should be welcomed (and encouraged) as a postive step towards a legal solution to a problem with immense political significance. In fact, I would argue that the AU – and African states – have not been given enough credit for their tendency to address their gripes about the ICC (and international justice more generally) within an (international) legal framework, as opposed to adopted more blunt, political approaches. This is testament to both the relevance of international law, and the stock that African states place in its ability to resolve matters of international concern in a fair and predictable manner. This faith remains, notwithstanding the unfortunate attempts of powerful states to manipulate this system and its norms for their own less laudable ends.

UPDATE 2: See Julian Ku's discussion on this topic (and comments) at Opinio Juris.

UPDATE 3: Dapo Akande's post on EJILTalk! is a must-read.

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