3. The ICC Statute and States’ Obligations
4. Trampling on Article 87(7)

Pursuant to AU decisions and directives, many African States Parties to the ICC Statute have refused requests by the ICC to surrender indictees coming within their jurisdiction. Chad, Kenya, Djibouti, and Malawi are among the culprits.[28] Indeed, in December 2011, the ICC Pre-Trial Chamber I rendered two decisions pursuant to Article 87(7) of the Rome Statute, finding that both Malawi and Chad had failed to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Al Bashir.[29]

Nigeria is one of the countries that have trampled on Article 87(7) of the ICC Statute. It is common knowledge that al-Bashir was in Nigeria in July 2013 to attend the AU Special Summit on HIV/AIDS, Tuberculosis and Malaria which held in Abuja between 15 and 16 2013. Sudan’s Strongman left Abuja after the opening ceremonies without the Nigerian Government apprehending and turning him over to the ICC, as required by the ICC Statute that Nigeria freely ratified.

When queried by the ICC,[30] Nigeria, through the Office of the Attorney General and Minister of Justice, offered a lame, if not an embarrassing, response.[31] The Letter reaffirmed Nigeria’s “firm commitment to the Rome Statute and her readiness for continued cooperation with the ICC to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community and contribute in the prevention of such crimes as well as advancing the rule of law in the world”.[32] It admitted, indeed, that “President Al-Bashir made a brief appearance at the opening of the AU Summit and without delivering any statement left the country”.[33] However, the Letter offered a feeble defence stated that “[t]he Federal Government did not invite President Omar H. A. Al-Bashir to undertake a visit to Nigeria”; that he “appeared in ostensibly to attend the special Summit of the African Union … held pursuant to the decision of the Assembly of Heads of State and Government of the African Union at its Session in May 2013”; that “Member States do not therefore require the invitation of host Governments to attend such Summits in line with the decision and tradition of the AU Assembly”; that “[a]ll AU Member States are under obligation to comply with the decisions, declarations and resolutions of the AU”.[34] The Letter further stated that “[t]he sudden departure of President Al-Bashir [from Nigeria] prior to the official end of the AU Summit occurred at the time that officials of relevant bodies and agencies of the Federal Government of Nigeria were considering the necessary steps to be taken in respect of his visit in line with Nigeria’s international obligations”.[35] The Letter concluded by underscoring “Nigeria’s continued cooperation and support for the international criminal justice system”.[36]

What type of reasoning is this? Did the Nigerian Government not have an advanced notice of al-Bashir’s visit to the country, even if for the purpose of AU Summit? Do foreign dignitaries enter Nigeria’s airspace without clearance by relevant Government agencies? More particularly, were Nigeria’s officials, including the Immigration, not involved in clearing al-Bashir before and after arriving Nigeria? Where did the aircraft carrying al-Bashir land? Who received him at the airport? Or did al-Bashir appear and disappear at the venue of the Summit like a ghost? Which agency offered him security protection for the period he was in Nigeria? Does the AU have a standing and standby police force? Surely, we are led to believe a lie when we do not see through the eye.

1. African States and the Pacta Sunct Servanda Principle

The AU’s directives on its Member States vis-à-vis the ICC raise some important legal issues worthy of closer examinations. One is whether the AU has authority to direct its Member States to negate their treaty obligations by failing to cooperate with the ICC? In other words, can an international organization prize its members to breach their treaty obligations to entities to which that organization is not a member? This question is not merely academic, but one with practical legal significance, given the sacred pacta sunct servanda principle, which by interpretation means: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.[37].

By ratifying the AU Constitutive and other AU instruments, Member States recognize the AU legal order, with all its unforeseeable potential developments. Such recognition introduces the AU law into fields previously governed exclusively by municipal law. It permits some AU institutions, such as the AU Assembly, to assume the character of supranational entities. The AU organs could, thus, exercise their powers in the fields contemplated by the AU treaties, and could require national agencies to refrain from interfering in these fields.[38]

However, this doctrine of limitation of sovereign rights applies only in respect of subject-matters covered by the treaties that define the relationship between the particular institution and its members. Indeed, some commentators argue that the transfer of powers to international organs in no way changes the legal status of member states.[39]States “continue, as before, to be subject only to international law, since the constitution of the organization itself remains a treaty”.[40]This opinion finds its echo in the PCIJ famous holding that, rather than incompatible with sovereignty, entering into commitments is actually an attribute of State sovereignty.[41]

The present writer submits that the sovereignty of AU Member States is limited only to the extent envisaged by the AU Act and its protocols. The AU, for the time being, does not have its own social order of power. Its law is a law among states, not a new constitution for a new political society. Further, when African states negotiated, signed, and ratified the ICC Statute, they did so individually as sovereign entities rather than collectively as AU Member States. The AU itself is not a party to the ICC Statute; neither was the treaty elaborated under its auspices. Even the UN was merely a facilitator to allow states reconcile controversies and achieve mutually acceptable results. As Brolmann writes, “in the conclusion of agreements on matters traditionally belonging to the realm of inter-state relations the role of organisations as independent actors is a subordinate one”.[42] Constitutional norms relating to formal sources of the law are essentially state-based.[43] Therefore, international organizations – like the AU – cannot, and “should not be viewed as independent and influential bodies enjoying a separate will, acting on a par with states”.[44]

Compliance to a treaty obligation is also a question of law, not politics, based on thepacta sunt servanda rule – the rule that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.[45] Of course, states do not often implement treaties merely out of respect for the pacta sunt servanda rule, which explains why some treaties sometimes contain specific obligations to facilitate compliance, as the ICC Statute has done. Thus, it appears that notwithstanding AU’s directives, African States Parties to the ICC Statute that allow indictees into their territories without arrest are violating their treaty obligations. Since the ICC Statute does not fall within the enforcement authority of the AU, these states do not need the AU to validate or legitimise their treaty obligations.

African states wishing to withdraw from the ICC Statute should follow the procedure laid down in the Statute, after a proper cost-benefit analysis, than hide under nebulous decisions or resolutions of some AU organs to negate their treaty obligations. The Statute provides that “[a] State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date”.[46] Even then, “[a] State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute”.[47] This makes inordinately good sense, since one cannot eat his cake and have it back.