The AU Continues to Splinter over Bashir

by Kevin Jon Heller

Two updates of note.  First, the Ugandan government has said in no uncertain terms that it will arrest Bashir if he enters the country:

Henry Oryem Okello, Uganda’s minister for international affairs, spoke after meeting with the International Criminal Court’s chief prosecutor, Luis Moreno Ocampo, in Kampala.

Police “will ensure that he is arrested” if al-Bashir arrives, Okello said.

Ocampo added: “It is a legal obligation for Uganda to arrest Bashir if he comes to Uganda.”

The Ugandan government has previously supported efforts to defer the arrest warrant.  It is unclear whether the newest statement means that position has changed — although it is important to note that the two positions are in no way inconsistent: a government can push for deferring the warrant while still maintaining a committment to cooperating with the ICC if those efforts fail.

Second, NGOs in South Africa are arguing that the South African government is constitutionally obligated to cooperate with the Court:

The South African government came under fire from newspapers and legal experts who said that president Jacob Zuma was reneging on his country’s legal obligations.

Professor Du Plessis from University of KwaZulu-Natal said that resolution directly conflicts the South African constitution.

“South Africa is also one of only three states on the continent to have domesticated the ICC statute’s provisions into its national law,” he wrote in ‘Cape Town’ newspaper

“South Africa’s ICC implementation legislation, passed by our Parliament as Act 27 of 2002, holds in Section 8 (2) that were al-Bashir to be present on South African territory, and the ICC were to request his arrest, the director-general of the Department of Justice “must immediately on receipt of that request, forward the request and accompanying documents to a magistrate, who must endorse the warrant of arrest for execution in any part of the republic,”

The South African NGO’s including the Centre for Applied Legal Studies, the International Centre for Transitional Justice, the Khulumani Support Group and Lawyers for Human Rights — will petition President Zuma and his government to take a stand against the AU’s position.

The South African ‘Times’ newspaper quoted the groups as saying that the resolution is “unconstitutional” if the government agrees to it.

The groups said that the meeting’s declaration “requires it to break its international treaty obligations and to defy its own law and constitution”.

They urged Zuma to publicly state that his government would honor its obligations or else the group “will decide how further to engage and respond”, which could include court action.

Unidentified South African officials speaking to ‘Cape Town’ newspaper acknowledged that government “is in a difficult position” over the resolution which conflicts with its obligations under the Statute.

This is a very interesting strategy — and one that should be encouraged.  It is bad enough that AU members who are also members of the ICC are willing to ignore their obligations under the Rome Statute.  They shouldn’t be allowed to ignore their domestic law, as well.

By the way, I’m curious as to which other states have incorporated the Rome Statute into their domestic legislation.  I believe that Senegal is one, but am not sure.  Anyone know?

http://opiniojuris.org/2009/07/13/the-au-continues-to-splinter-over-bashir/

6 Responses

  1. Interesting developments at the AU and in Africa. I guess the true test will be if Bashir actually does travel to some of these states…
    Regarding the domestic implementation, the ICC Legal Tools project has some info about National Implementing Legislation (http://www.legal-tools.org/en/access-to-the-tools/), as does Nottingham University, a partner in the project (http://www.nottingham.ac.uk/law/hrlc/international-criminal-justice-unit/implementation-database.php)…

  2. Things could get very interesting if Bashir accepts the invitation to the Smart Partnernship Dialogue on July 27. Although given these announcements, that is probably unlikely, though there were earlier reports he was going to.

  3. Uganda is also hosting an AU Special Summit on refugees and internally displaced persons in October when African leaders are scheduled to sign the first legally binding convention on IDP protection and assistance.  Not sure Bashir would have participated, considering the Summit’s theme, but Kampala’s recent affirmation of its obligations under the Rome Statute will certainly factor into his decison-making process. 

  4. From Dave’s helpful link it would appear that, other than South Africa, the two Congos are the ones that have implemented some sort of ICC-related legislation.  These appear to (only) incorporate the Rome Statute crimes into domestic legislation rather than create a comprehensive cooperation regime as does the South African example (although admittedly both laws in French - not my best language, and I would stand corrected).

    And you are right about Uganda – although it did previously support a deferral, it did so by the book, invoking Article 16 of the Rome Statute.  This AU declaration, on the other hand, is nowhere any book.

  5. I am not sure I follow your reasoning, Kevin: clearly Uganda made the statement in order to avoid having to decide whether it will arrest al-Bashir. They want to avoid him coming within their jurisdiction so that they are not faced with the troubling dilemma of either arresting him (thus creating problems for themselves with the AU) or failing to cooperate with the Court (thus breaching an international obligation they have). I do not see any other reason for them to make such a public statement. Surely, if they really wanted to arrest al-Bashir, they would have refrained from issuing any such statement in order to ‘lure’ him there….

  6. I’m not sure it’s the case that Uganda actually wants to arrest President al-Bashir.   I’m sure they would very much rather avoid the difficulties of that situation, hence their call for a deferral.  But, most importantly, what they are saying here is that they would arrest him, however reluctant they would be to do so.  Legal obligations before political allegiance.

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