African Union Loves Bashir, Hates the ICC

by Kevin Jon Heller

Not surprisingly, the AU has condemned the ICC’s decision to issue an arrest warrant against Bashir for genocide.  Equally unsurprising, the new resolution seems to have been adopted with the same kind of back-room machinations that led to the AU’s previous resolution condemning the ICC:

Over the weekend, delegates from the AU countries reportedly fought a fierce battle that led to removing language that reiterates previous positions on granting immunity to Bashir in Africa and criticizing the ICC prosecutor Luis Moreno-Ocampo.

Bashir was indicted by the International Criminal Court (ICC) for war crimes in Darfur last year. This month the court added genocide to the charges, accusing him of orchestrating murders, rapes, and torture in the troubled western region.

The Sudanese leader himself has skipped this summit in retaliation to Museveni’s absence from his inauguration, according to Sudanese government sources who spoke to Reuters.

Some ICC states including South Africa along with Botswana and Uganda fought for the watered down resolution on ICC, while non-ICC countries such as Libya, Eritrea and Egypt wanted to maintain the hard-line approach.

However, the resolution on the ICC was changed on Tuesday to a more harsher version to the surprise of many observers who followed the summit closely and it remained unclear what happened behind the scenes at the final hours of the summit.

The text said that the summit “reiterates its decision that AU member states shall not cooperate with the ICC in the arrest and surrender of President al-Bashir of the Sudan.

The Sudan Tribune‘s article — which is entitled, with remarkable forthrightness, “African Union Moves Aggressively to Shield Bashir from Prosecution” — leaves little doubt that the AU has absolutely no interest in bringing Bashir or any other African head of state (i.e., them) to justice.  (To its credit, South Africa has already announced that it will arrest Bashir if he enters the country.)  Here are some “highlights”:

The summit also expressed “concern over the conduct” of the ICC prosecutor and accused him “making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan al-Bashir of the Sudan and other situations in Africa.”

No, not rude and condescending statements!  How awful of the Prosecutor not to treat a mass murderer with kindness and respect.  Perhaps Scott Gration can give Bashir an extra portion of cookies, smiley faces, and gold stars to soothe his bruised ego.  Then we’ll definitely get peace in Darfur.

On Saturday the AU Commission Chairperson who is a long-time fierce critic of the court, slammed the ICC and said that its prosecutor “does not care” if his actions jeopardize peace in Sudan and reiterated assertions that the Hague tribunal is “bullying” Africa.

Because nothing says bullying like investigating three situations that African states self-referred to the Court and one that was referred by the Security Council.  As for peace, we really do miss the friendly relations between the Darfuris and the Sudanese government that existed for two decades before the ICC ruined everything.

On Tuesday, the AU Chairman, Malawi’s President Bingu wa Mutharika speaking to reporters questioned the legality of ICC jurisdiction over the Darfur case.

The UN Security Council (UNSC) issued resolution 1593 under chapter VII in March 2005 referring the situation in Darfur to the ICC. At the time Tanzania and Benin voted in support of the resolution while Algeria abstained.

“Let us look at the position of the ICC,” said Mutharika. Do they really have a right to tell us what to do on this continent? It’s a question. Do they have a right to try Sudan, who’s not a member of ICC? I don’t know.”

He might not know.  Those of us who understand how the Security Council works do.  More seriously, Mutharika’s statement illustrates just how disingenuous the AU’s attacks on the ICC really are.  The AU’s problem is with the Security Council, not with the Court.  (And with Russia and China, traditional allies of Sudan that did not veto Resolution 1593.)  But it’s much easier to launch intemperate attacks against a judicial institution that is limited in its ability to fight back than against the UN, which the AU still needs.

The AU final resolution also slammed the “blatant abuse of the principle universal jurisdiction” and called for “immediate termination of all pending indictments”. It called on the international community to respect “the immunity of state officials when applying the principle of Universal Jurisdiction”.

A tiny problem: the ICC doesn’t have universal jurisdiction.  And the Security Council referral removed any immunity from prosecution by the ICC that Bashir might have had.  (Arrest and surrender issues are, of course, more complicated.)

Mutharika stressed that Bashir will not be tried outside the continent under any circumstances.

“As chairman, I would not sweep the issue of El Bashir under the table,” Mutharika stated, but underscored that Bashir could not and would not be tried outside the African soil.

[snip]

The Panafrican News Agency (PANA) reported that AU leaders deliberated behind closed doors on whether Bashir could stand trial before an African court but said that the proposal was defeated.

A source told PANA that the African leaders advised the Arusha-based African Court of Justice to explore its ability to undertake a war crimes trial or crimes against humanity in Africa.

Some leaders warned their compatriots, who would be indicted in future for rights abuses, including war crimes and genocide, that they would face justice.

“They explored the process of instituting an African trial of President Bashir, but again, we have no mechanism to do that. They had wanted to go the [former Chadian president] Hissene Habre way, but it has taken 10 years to try him (Habre) . This line of discussion was discouraged because it does not deliver justice,” the source said.

So, we won’t sweep Bashir’s crimes under the table — but we won’t adopt a resolution calling for him to be tried before an African court, we have no pan-African mechanism for such a trial (the African Court of Justice has no criminal jurisdiction), and the one national attempt to try a head of state has failed miserably.

Meanwhile, the most comprehensive study to date of Darfuri attitudes toward Bashir found that 98% want him to stand trial before the ICC.

So who should the Court listen to?  The AU or the Darfuris themselves?

http://opiniojuris.org/2010/07/31/african-union-loves-bashir-hates-the-icc/

13 Responses

  1. If only this were referred to the ICJ by the ASP as per Article 119 (specifically with regards to Chad).. What a juicy case that would be!

  2. Hi Kevin, I agree with our general evaluation of the AU and its ICC State Parties’ ridiculous political manoeuvering and lack of courage to accept what they signed up for.

    But they do have a point…

    On the conduct of the Prosecutor, I perfectly agree with the Sudan’s Tribune actually. He’s a court Prosecutor, not some activist. You can say that Bashir “is a mass murderer”. Ocampo cannot. He’s an organ of a court that applies the presumption of innocence. Second of all, he has no place in analysing the Sudanese election as a “Hitler election”. More generally, Ocampo is a terrible conveyor of ideas and he is definitely “rude and condescending”. You picked up on the Guardian article he wrote last week. And I had commented a while back on his press conference when the Kenya investigation was opened.

    On the relationship of the SC and the ICC, you don’t need to be a disingenuine Malawi president to contest the actual framework. I personally still think that the ICC (a treaty) giving the SC power to effectively make a State bound by something else than the UN Charter is contrary to international law. I know the the SC’s powers are large, but do show me when in the past, it made a State a party to a treaty it didn’t want to be a party of… And that applies to immunities.

    As for the report you refer to at the end, it’s not of Darfuris in general, it’s of Darfuri refugees and rebel leaders! Of course they want Bashir tried! And i’m sure that if asked, a lot of them would have wanted him hanged. But the survey stayed within the boundaries of the acceptable. Should we amend the ICC Statute to provide for the death penalty as well?

  3. Dov,

    Serbia and the ICTY.

  4. As for the Security Council point, I disagree with your reading of Article 13.  The Rome Statute does not “give” the Security Council the authority to refer a situation; the Security Council has that authority by virtue of Chapter VII.  Article 13 simply permits the Court itself (“may exercise”) to pursue a situation that would not normally be within its jurisdiction.

  5. Kevin,

    Please do show me where Chapter VII allows the SC to compel a State to abide by a treaty it didn’t sign…

    The problem is not so much with article 13 (which is the one I think you meant to refer to). I agree that the ICC can decide to receive a referral from whomever they want. The problem is article 12(2), on the jurisdictional links of territoriality or nationality, and its application only to State referrals or proprio motu and not to SC referrals.

    I understand the political reasons for this exclusion (the SC is a legitimate universal UN organ, meant to uphold peace and security for all, etc.), but not the legal ones. This shouldn’t be framed as a “power” given to the SC, but rather to the legal consequences attributed to the referral done by the SC. And in my reading of the UN Charter (on which we can disagree with), there is nothing in there that justifies the power given to the SC. Which basically means that it is the choice of the drafters to not apply 12(2) to SC referrals, not something that logically flows from the UN Charter. Which also basically means that from a legal point of view the drafters could have omitted article 12(2) altogether, for all types of referrals.
    But the fact remains, that immunities do stand in relation to third States, SC or no SC…

  6. “And in my reading of the UN Charter (on which we can disagree with), there is nothing in there that justifies the power given to the SC”
    I of course meant to say “nothing that justifies the exclusion of the jurisdictional criteria”, especially as I call for NOT using the word “power” two sentences above…

  7. Dov,

    I think there are two possible responses.  First, Sudan did sign the relevant treaty — the UN Charter.  By signing the Charter, Sudan consented to the Security Council exercising its Chapter VII authority to maintain peace and security.  And in order to maintain peace and security in Sudan, the Security Council referred the situation in Darfur to the ICC.  If the Security Council can create an ad hoc tribunal under Chapter VII (with jurisdiction over Serbian nationals no less, even though Serbia was not a member of the UN at the time), why cannot it not refer a situation to the ICC?

    Second, I think it is incorrect to say that the Security Council is “compelling” Sudan to abide by a treaty it did not sign.  It is compelling Sudanese individuals to abide by international law, which indisputably criminalizes war crimes, crimes against humanity, and genocide.  The ICC is simply the forum in which those violations of international law will be prosecuted.

  8. Kevin,

    You raise an interesting point (if only by the way), and I wonder if you know of any material on that point.

    You say in your latest comment that the SC has created an international tribunal with jurisdiction over Serbian nationals even though Serbia was not a member of the UN at the time.

    I agree, of course, that that is what happened. I only happen to think that jurisdiction over Serbian nationals is not the critical point. There is no rule that jurisdiction over a state’s own nationals is dependent on that state’s consent (which might have been, but wasn’t, expressed through ratification of the Charter).

    I would have thought the ICTY was established by the SC not by inventing a new form of original international jurisdiction, but by taking the the criminal jurisdiction that UN member states had over the relevant offences and transferring it to the ICTY. That, certainly, is how the defence motion on jurisdiction in the Milutinovic et al. (Kosovo) case has conceived of the matter. That is why, after the admission of the Federal Republic of Yugoslavia to the UN on 1 November 2000, they argued that the ICTY could not have been given jurisdiction over crimes committed in Kosovo, by and against Yugoslavian citizens. This meant, according to the defence, that only Yugoslavia had jurisdiction, and because it had not been a member of the UN in 1992, the SC could not have given that jurisdiction to the ICTY. (The defence denied that there was any relevant universal jurisdiction.)

    Trial Chamber III, on 6 May 2003, resolved the issue in accordance with ICJ case-law as it (was) then (under)stood. It held that the FRY had had a sui generis status vis-à-vis the UN, holding membership rights and duties on a case-by-case basis. The ICJ could be understood as having said, in its Genocide Convention (Application for Revision) Judgment of February 2003, that the FRY had continued to be a member of the UN for the purposes of access to the Court (Article 35 (1) of the ICJ Statute), and Trial Chamber III added that it was also bound by the resolutions of the SC. It found, in its own words ‘sufficient indicia of membership’ to so conclude.

    It appears, incidentally, that Trial Chamber III didn’t quite grasp the defence argument. It certainly suggested that the point about universal jurisdiction was not decisive (even on the defence motion’s own logic), when clearly it did.

    The Appeals Chamber, by a decision of 8 June 2004, avoided the issue entirely, holding simply that Article 1 of the ICTY Statute extended the jurisdiction of the Tribunal to Kosovo, and that that was it.

    The ICJ in the Legality of Use of Force Cases (Judgments of 15 December 2004) rubbished the sui generis approach and held that the FRY had not been a member of the UN from 1992 to 2000 for any purposes whatsoever. The Court’s later judgments – on the merits of the Bosnian Genocide Convention Case and the preliminary objections in the Croatian case contained nothing to the contrary.

    And here’s my question to you: has the Milutinovic point about jurisdiction been taken again, now with proper regard to the Legality of Use of Force Cases?

    The question has concerned me for some time, so I’d be very grateful if you knew of anything up-to-date on the point.

    (Of course, a simple affirmation of universal jurisdiction might easily take care of the point. If universal jurisdiction had existed, the SC could have transferred any state’s jurisdiction over the crimes in Kosovo to the ICTY.)

  9. The Agreeement establishing the STL was imposed on Lebanon by the UN SC, wasn’t it?

  10. Not quite Guy, Lebanon consented to having the STL established.
    See on the STL website, for example: “On 13 December 2005, the Government of the Republic of Lebanon requested the United Nations to establish a tribunal of an international character to try all those who are alleged responsible for the attack of 14 February 2005 in Beirut that killed the former Lebanese Prime Minister Rafiq Hariri and 22 others. Pursuant to Security Council resolution 1664 (2006), the United Nations and the Lebanese Republic negotiated an agreement on the establishment of the Special Tribunal for Lebanon. Further to Security Council resolution 1757(2007) of 30 May 2007, the provisions of the document annexed to it and the Statute of the Special Tribunal there to attached, entered into force on 10 June 2007.

  11. But Lebanon was unable to ratify the agreement, so the SC Res 1757 imposed it…somewhat similarly to what the SC did in the case of Sudan and the ICC…

  12. I did not know that, but after looking around, you are right. The STL Agreement is – according to this paper – “the STL the first treaty-based tribunal in the history of the U.N. to be enforced by resolution under Chapter VII.” (p. 12).

    Interesting.

  13. Manuel,

    Art. 119 doesn’t look like establishing an independent basis for consent to the ICJ’s jurisdiction. Plus, the ASP cannot appear before the Court as such. According to Art. 34 of the ICJ Statute, only States may be parties in contentious cases before the Court. So the ASP can’t ‘sue’ Chad.

    The ICJ’s advisory jurisdiction would also be out of the question, seeing as the ICC-ASP is not an organ of the UN or a specialized body authorized to seek an opinion pursuant to Art. 96(b) of the UN Charter.

    In any event, Art. 119 of the ICC Statute does not give the ASP the power to refer a case to the ICJ (a case which would in any event be inadmissible). It may only “make  recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court”. So the ASP may ‘recommend’ States to take up the issue before the ICJ. Seeing as Chad has not consented to the compulsory jurisdiction of the Court (Art. 36, ICJ Statute), there is basically no possibility for Chad’s non-compliance to be entertained by the ICJ.

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