Max du Plessis
Associate Fellow, International Law Programme
The dispute between the African Union and the ICC over Omar al-Bashir highlights the need for a conclusive determination on the legal issues.
Sudan President Omar al-Bashir on a visit to Ethiopia in April. Photo: Getty Images.Sudan President Omar al-Bashir on a visit to Ethiopia in April. Photo: Getty Images.

When the International Criminal Court (ICC) charged President Omar al-Bashir of Sudan with the commission of international crimes a fractious relationship developed between the African Union (AU) – who claim that the president should be accorded immunity as a head of state – and the Court. There have been threats by many African states to withdraw from the ICC, and some have taken steps to do so. A meeting of African ministers in New York on 21 September, and an AU Commission proposal presented there by South Africa’s legal adviser, highlight both the ongoing tensions but also, importantly, the possibilities for resolution.

The debate goes to the heart of the international criminal justice project; 2017 has proved a watershed year, with recent events confirming the tensions. It has also highlighted the mounting need for a resolution of the dispute, or at the very least a debate about how it might best be put to rest.

Tensions were raised by the 6 July decision of the ICC, involving South Africa’s failure to arrest Bashir when he attended the AU heads of summit meeting in Johannesburg in June 2015.  Bashir is the subject of an outstanding arrest warrant from the ICC on charges of war crimes, crimes against humanity and genocide. The three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa failed to comply with the ICC’s request to arrest Bashir (although one judge came to that conclusion by separate reasoning). The PTC found that states parties to the Rome Statute (the treaty which established the ICC), such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory. This holds even though Sudan is not a party to the ICC – thereby effectively overriding any immunities that Bashir might otherwise have had as head of state under customary international law, and giving the Rome Statute and Security Council resolutions priority.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to explain its reasons for failing to arrest Bashir. The South African government expressly said that the issues were sufficiently important that if the decision went against South Africa, the matter should proceed automatically for final determination on appeal. 

The PTC did not take up South Africa’s offer. The need for a final judicial settlement remains imperative.

On 21 September, the African Union's open-ended Committee of African Ministers on the ICC met in New York. There the ministers considered a concept note of the AU Commission, presented by South Africa’s legal adviser, Professor Dire Tladi, a recognized expert on international law. The note was in response to the ICC’s 6 July decision, stressing the essential issues of conflict and outlining various possibilities for resolution. With the ICC Assembly of States Parties (ASP) meeting scheduled for early December, also in New York, space has opened for a debate on the immunities question and its broader implications for the ICC, the Security Council, and international criminal justice more generally. Importantly, the AU open-ended Committee was not opposed to the issues outlined by Tladi being opened for meaningful debate at the ASP.

The subject of immunities has been a central concern of the AU as well as ICC member states seeking measures to reform and improve the ICC. African states have felt the brunt of what have been described as ‘competing obligations’ – being pulled in one direction to assist the ICC, and in the other direction by the customary international law duty to respect official immunities.  In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also faced this conflict between arrest and immunities; like South Africa it did not arrest Bashir when he visited the country.

There can be no serious debate that the question of immunities remains one of the most pressing issues before the ICC, with countless academic articles offering differing legal conclusions, not helped by conflicting ICC decisions that preceded the 6 July decision against South Africa.  Bashir will continue to travel within and outside Africa, and the Court’s view is that all states, whether parties to the ICC or not, are obliged to arrest and deliver him to the Court. While the 6 July PTC decision presents itself as the answer to the legal questions arising, it cannot pretend to be the last word on the matter – and is not considered as such by the AU, as evidenced by its 21 September meeting, and the recent ANC policy conference stating that South Africa will withdraw from the ICC, in part because of the Court’s position on immunities. 

In that climate, a final conclusive determination on the legal issues remains imperative. A number of possible pathways exist to ensure that the issues of substance can finally be determined, including by the Appeals Chamber, or the International Court of Justice. The concerns of states need to be respectfully and effectively considered by the Court. The AU Commission’s note, presented by South Africa’s legal adviser, outlined the essential issues of debate and possibilities for resolution. The ICC Assembly of States Parties meeting is fast approaching. It remains to be seen whether the states concerned, African groupings, or the ASP itself, will ensure that the issues are raised in an open and constructive debate.

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