The AU’s Position on Personal Immunity: A Response to Coracini & Trahan

Astrid Coracini and Jennifer Trahan have a new post at Just Security that argues a Special Tribunal for the Crime of Aggression created either by treaty or by a General Assembly-endorsed agreement between Ukraine and the UN would not have to recognise the personal immunity of Russian officials. I disagree, for reasons I have explained in a recent article in the Journal of Genocide Research. I don’t want to repeat that critique. Instead, in this post, I want to focus on an aspect of their argument that I have not seen before: namely, the insinuation that the African Union (AU) believes international courts do not have to recognise personal immunity. I assume that claim is a response to my contrary one in the article mentioned above — opposition that I have cited as a reason to be skeptical of the idea (endorsed by a number of scholars) that the General Assembly will support a Special Tribunal in large numbers.

Here is what Coracini and Trahan say about the AU, referencing the Jordan case:

It is worthy of note that during the proceedings, the African Union had not contested the customary nature of Article 27, but only its applicability on the horizontal level between state parties and non-state parties to the Rome Statute. As regards the position vis-à-vis international courts, the African Union had explicitly recognized the non-applicability of personal immunities of sitting heads of states before the ICC. It confirmed that Article 27(2) “concerns the exercise of jurisdiction by the Court over a person” and “excludes the operation of immunity before the International Criminal Court” (Submission of the African Union, para. 14). Most importantly, this assessment was not based on the Security Council’s referral of the situation; the African Union expressly stated its view that Security Council Resolution 1593 “did not have the effect of removing, whether directly or indirectly, the immunities of President Al Bashir” (id., para. 10).

Although Coracini and Trahan are not mischaracterising what the AU argued, it is simply not the case that the AU accepts personal immunity doesn’t apply “vertically” before international courts.

First, it is important to be precise about what the AU argued in the Jordan case. The AU did indeed accept that Art. 27 prohibits a sitting head of state from invoking personal immunity before the ICC. It could hardly do otherwise, given the text of Art. 27. But the AU explicitly argued that personal immunity nevertheless prohibits all states, even those party to the Rome Statute, from arresting a sitting non-party head of state or surrendering him to the Court. Hence its submission in para. 10 that “States Parties and States not parties [sic] alike continue to be obligated to respect the immunities of President Al Bashir under customary international law” and its argument in para. 16 concerning the relationship between Art. 27 and Art. 98 of the Rome Statute:

In a sense, Art. 98(1) serves as a without prejudice clause, leaving intact the customary international rules pertaining as between States Parties and non-Parties inter se. Thus while the Court may have jurisdiction over a head of state not Party to the Rome Statute in terms of Art. 27, the duty to cooperate in the arrest and surrender does not apply in relation to a head of non-State Party.

In other words, the AU’s position in the Jordan case is this: although the ICC can prosecute a government official entitled to personal immunity if it has him in custody, no state in the world has the right to arrest the official or surrender him to the Court — not even states that are obligated to cooperate with the Court by virtue of their membership. That is hardly a robust endorsement of the idea that personal immunity doesn’t apply before international courts, because it limits prosecution to situations in which a government official with such immunity voluntarily surrenders to the Court.

The problems with Coracini and Trahan’s account of the AU’s position go even deeper, however, because it is simply not the case that the AU believes personal immunity is limited to “horizontal” relationships between states. It may have offered arguments that can be read that way in the specific context of the Jordan case, but the official decisions of its Assembly leave no doubt that the AU believes personal immunity applies before all courts, national or international. Indeed, the Assembly said precisely that in its Decision on Africa’s Relationship with the International Criminal Court, adopted in 2013 after the election in Kenya that brought Kenyatta and Ruto to power. Here are the relevant paragraphs of the Decision, which Coracini and Trahan don’t mention (emphasis mine):

9. REAFFIRMS the principles deriving from national laws and international customary law by which sitting Heads of State and other senior state officials are granted immunities during their tenure of office;

10. NOW DECIDES:

(i) That to safeguard the constitutional order, stability and, integrity of Member States, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office;

(ii) That the trials of President Uhuru Kenyatta and Deputy President William Samoei Ruto, who are the current serving leaders of the Republic of Kenya, should be suspended until they complete their terms of office.

These paragraphs do not simply affirm that no state can arrest or surrender a government official entitled to personal immunity. They make clear the AU believes personal immunity prohibits the ICC from prosecuting any such official. And not just the ICC — “any International Court or Tribunal.”

The AU’s robust defence of personal immunity in its 2013 ICC Decision is not surprising. After all, when the AU adopted the Malabo Protocol in 2014, extending the jurisdiction of the proposed African Court of Justice and Human Rights to a variety of international crimes — including aggression — it specifically prohibited the prosecution of government officials entitled to personal immunity. Here is the text of Art. 46A bis, entitled “Immunities” — and note the similarity to paragraph 10 in the 2013 ICC decision:

No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.

Coracini and Trahan’s post doesn’t mention the Malabo Protocol either, and it’s obvious why: her position asks us to accept that the AU believes personal immunity can be set aside by an international court it has consistently condemned as racist and neocolonial but must be recognised by an international court the AU itself created. That is unconvincing, to put it mildly.

In short, there is every reason to believe that the African Union will not support a Special Tribunal if it is empowered to set aside the personal immunity of Russian officials. As the AU’s 2013 ICC Decision and the Malabo Protocol make clear, the AU believes that personal immunity applies before all courts, international as well as domestic.