African Union may ask ICJ for opinion on Bashir’s immunity from ICC

by Julian Ku

Be careful what you wish for:

The leaders at the African Union (AU) summit in Addis Ababa asked the chairperson of the pan-African body to consider moving the case of Sudanese president Omer Hassan al-Bashir before the International Court of Justice (ICJ) for an opinion

Today the Xinhua news agency reported that the AU leaders affirmed that the ICC has no legal powers to remove the immunity that international law grants to state officials who are not parties to the Rome Statute.

They asked the AU Commission to consider seeking advice from the ICJ regarding the immunity of state officials under international law.

Dapo Akande has been all over this issue. He thinks that Bashir does not have immunity, but he does not think this is an easy or clear case and depends on the Security Council’s powers more than on general customary international law.  I have a hard time imagining  the ICJ rulling in favor of the AU here, but it would not be a simple or slam-dunk opinion against immunity either.

7 Responses

  1. Response…
    There are so many recognitions of nonimmunity that it should be a slam dunk.  The Prosecutor v. Milosevic, for one, recognized that nonimmunity is customary international law.  Even the errant ICJ opinion in Belguim v. Congo recognized that there is no immunity before international criminal tribunals.

  2. His dismissal of absolute immunity, however, gives rise to the unsettling hypothetical scenario in which two States were to establish a feigned ‘international court’ for the sole purpose of prosecuting a foreign Head of State, who would otherwise have enjoyed immunity from the jurisdictions of both of these States.
    The ICJ did not
    elaborate on the defining criteria by which such international criminal courts can be distinguished from other courts.

  3. Response…
    Crockodile tears for the sitting head of state who is reasonably accused of an international crime under customary international law over which there is universal jurisdiction! 
    My point is that the ICJ decision is out of line with predominant trends in judicial decision concerning nonimmunity of sitting thisis-and-thats with respect to both civil and criminal sanctions in domestic fora.  I found the book Luts & Reiger, Prosecuting Heads of State (2009) to be quite useful in identifying many of the actual trends in decision, and used it in my soon to be published article in 34 Houston Journal of International Law (2011).
    I have always been fond of a French court’s recognition (non-criminal) that not only is the King capable of doing wrong, but the King is more capable of doing wrong than ordinary folk!

  4. Really interesting post. I’m currently dealing with some difficult legal issue and I too would like to get an advice from the ICJ! If the AU can seek advice, why shouldn’t I be able? But what would the legal base for invoking an intervention by the ICJ be? The underlying legal issue of immunity is interesting but why speculate on what the answer of the ICJ would be if there is really no legal chance to get an advice (advisory opinion?) unless such advice is requested in accordance with the UN Charta and the ICJ Statute?

  5. Response…
    Dubito: you actually raise an interesting issue — who can seek an Advisory Opinion from the ICJ.  The answer is an organ of the U.N., as in the past, the S.C. or the G.A. — but not the O.A.U.  Moreover, the ICC as such cannot be before the ICJ.  I would rule that the ICJ has no jurisdiction.

  6. Sir/Madam, do you have a link to the final decision of the AU Assembly? Thank you for your consideration.

  7. Jordan,
    The question is not just whether it can be considered a rule of customary international law that Heads of State enjoy no immunity before (certain) international criminal courts (as the ICJ suggested in the Belgium v Congo case).
    The question that might be more relevant for the AU and its members is whether their authorities are able to arrest Al Bashir without violating his immunity. They hold both an obligation under the Rome Statute to arrest, as an obligation under customary international law to adhere to head of state immunity. So I think it is less a question of ICC jurisdiction, as it is one of inter-state obligations. In such a case the advisory opinion could address the relationship between an AU member and the state of Sudan, as opposed to the ICC. Don’t you agree?

    This article seems to set out the different facets in detail:

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