The Africa Union and the ICC

by Kenneth Anderson

I don’t know quite what to make of this story from the AP of July 3, 2009:

African leaders approve anti-ICC move

SIRTE, Libya (AP) — African leaders have approved a contentious decision to denounce the International Criminal Court and refuse to extradite Sudan’s President Omar al-Bashir.

The final decision by the African Union heads of state summit says AU members “shall not cooperate … in the arrest and transfer of the President of Sudan to the ICC.”

The story adds that “some leaders say there was strong dissent on the text. Benin Foreign Minister Jean-Marie Ehouzou says that Sudan’s neighbor, Chad, objected to the wording.”

At Complex Terrain Lab, Tim Stevens notes that the BBC carries the story as well and adds, “This can’t be good news.”  Eric Posner at Volokh Conspiracy puts a broader gloss on it, suggesting that the move demonstrates the “limits of global legalism,” and adds that the ICC

is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.

The ICC as technical assistance and development organization?  If so, it comes wrapped in very peculiar clothing – viz., the power in theory at least to compel its technical assistance.  But I suppose that if this report from the AU meetings prove true, then it might turn out to be the ICC has its effects mostly under circumstances where it might look like an institution with independent teeth, but in actual performance is more like a technical assistance body that depends upon cooperation.

I myself have always thought that the question underlying the ICC is whether it is actually possible to have a judicial institution that is stronger than the political, social and cultural matrix from which judicial institutions ordinarily, in Weberian terms, derive their legitimacy and authority.  Eric is expressing a material, realist skepticism; mine is a skepticism based in idealism, one that accepts notions of legitimacy as carrying genuine weight – but which then asks what the basis for legitimacy and authority is supposed to be, and what the theory of legitimacy is, if it does not otherwise satisfy classically Weberian conditions.  The answer seemed to be, not a problem, because the ICC will address only such beyond-any-defense issues of genocide and crimes against humanity and obvious war crimes that the question of it being embedded in a pre-existing social order won’t matter.  It will have its own legitimacy the way that Nuremberg is supposed to have a kind of auto-legitimation.

Maybe that’s so, and maybe this resolution, if it turns out to be true and lasting, still won’t turn out to have bad effects.  Maybe, for example, the EU and the US can put on enough political pressure that it is just another forgotten diplomatic declaration at some forgotten conference.  One data point is not the stuff of infinite straight line extrapolation.  But still, at first blush this doesn’t look like a great data point on the road to showing that the stuff of the ICC is so obviously bad, bad, bad in the eyes of the “international community” that it obviates the usual Weberian embedding of judicial orders within social and political ones.

http://opiniojuris.org/2009/07/04/the-africa-union-and-the-icc/

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