The 30th session of the African Union Summit of Heads of State and Government concluded this week in Addis Ababa with the regional body agreeing to move forward with a request to seek an advisory opinion from the UN’s highest court – the International Court of Justice – on the question of immunities of heads of state and government and other senior officials.
The move comes following years of legal wrangling around the execution of the International Criminal Court arrest warrants for Sudanese President Omar AL-Bashir, who has traveled to several African countries that are states parties to the Rome Statute, the ICC’s founding treaty.
Most recently, ICC judges found that South Africa had failed to comply with its obligations under the Rome Statute to arrest AL-Bashir during a 2015 visit. The African Union supports South Africa’s position that competing obligations under customary international law trump obligations under ICC law.
In instructing its African Group in New York to immediately place the request for the ICJ Advisory Opinion on the agenda of the United Nations General Assembly, the African Union is seeking clarity on relationship between Rome Statute Article 27 (irrelevance of official capacity) and Article 98 (cooperation with respect to waiver of immunity and consent to surrender) and the obligations of ICC states parties under wider international law.
Allan Ngari, Senior Researcher with the Institute for Security Studies in Pretoria:
“Ideally, the judges of the ICC’s Appeals Chamber should interpret the court’s founding law with finality, but such a decision might not be perceived as truly objective by African states and the AU that have questioned the legitimacy of some of the ICC’s work, particularly with respect to the arrest warrant against President Omar AL-Bashir of Sudan. If framed correctly by the UNGA, an Advisory Opinion of the ICJ presents an opportunity to resolve the differences in interpretation of the question of immunities from prosecution for sitting heads of state before the ICC and possibly the corresponding obligations on States and non-States parties with the cooperation regime of the ICC. These questions are at the heart of the tensions between African states and the AU on the one hand, and the ICC on the other.”
The AU also instructed the Africa group of ICC states parties to request the establishment of a working group on the question of immunities and related cooperation, and to urge the next Assembly of States Parties of the ICC to withdraw from its agenda the consideration of the Draft Action Plan on Arrest Strategies.
The gathering of African heads of states also expressed deep concern with the ICC’s July 2017 decision that found South Africa non-compliant with the Rome Statute and condemned the opening of the ICC investigation in Burundi in 2017.
Addressing the summit opening, African Union Commission chairperson, Moussa Faki Mahamat said that 2018 would be the year of the battle against corruption and institutional reform.
UN Secretary General Antonio Guterres also spoke at the opening of the summit, saying the partnership between Africa and the UN was “solid, and grounded on sound principles of human rights and good governance.” Guterres also met with al-Bashir to discuss issues such as the joint AU-UN peacekeeping force in Darfur.