The AU Seeks Clarity on Immunity of State Officials Under International Law

In the latest decision of the AU Assembly relating to the International Criminal Court, member states raised the important new issue of immunities for heads of state under international law and are seeking clarity from the International Court of Justice on the matter. AU member states should be given credit for addressing the ICC issue within an international legal framework.

Published on 14 March 2012 in ISS Today

Max du Plessis,  Senior Research Associate, Transnational Threats and International Crime Division, ISS Pretoria and Associate Professor, University of KwaZulu-Natal, Durban

The decision of the African Union (AU) Assembly at its 18^th Ordinary Session in January this year on the International Criminal Court (ICC) is more or less unchanged from previous Assembly decisions relating to the ICC. Having reiterated their commitment to fighting impunity in line with the AU’s Constitutive Act, AU member states repeated the request that the UN Security Council defer ICC proceedings in Sudan and Kenya under article 16 of the Rome Statute. The decision that member states will not cooperate with the ICC in respect of the arrest and surrender of President al-Bashir of Sudan also still stands. Member states are urged to comply with this decision, and representatives of relevant African states are also requested to ‘scrupulously’ follow up on the implementation of these AU decisions by the UN Security Council and the ICC’s Assembly of States Parties.

The concerns that AU member states have with the ICC thus remain. There was however one important new issue raised by the Assembly at the January meeting: a request to the AU Commission ‘to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of State Officials under international law’. This decision presumably stems from AU member states’ unease with the ICC’s arrest warrant for al-Bashir.

It is not yet clear what route African states envisage taking in this regard. The AU Commission itself cannot approach the International Court of Justice for an advisory opinion. The UN General Assembly would however be able to do so. The UN Security Council would arguably be a more appropriate avenue – by virtue of the role it plays in international criminal justice generally, and under the Rome Statute in particular. The real question is whether the AU (via African members of the UN Security Council) could convince other UN Security Council members to play ball. This seems unlikely, not least of all because Western powers, including permanent members and ICC states parties like the UK and France, are most likely content with the ICC’s earlier Pre-Trial Chamber (PTC) position on the subject.

AU member states might alternatively consider using article 119 of the Rome Statute. African Ministers of Justice have in the past recommended that the issue of the relationship between articles 27 and 98 of the Rome Statute (which deal, in a somewhat contradictory manner, with immunities for certain state officials) be referred to the ICC’s Assembly of States Parties in terms of article 119 of the Rome Statute (see ‘Ministerial Meeting of African States Parties to the Rome Statute of the ICC’, 8-9 June 2009, Addis Ababa, MinICC/Legal.) Article 119, which relates to ‘general disagreements’, says that ‘disputes that do not pertain to judicial functions – that arise between two or more states parties – and relate to the interpretation or application of the Statute’, shall be referred to the Assembly of States Parties which can: (i) seek to settle the dispute itself or; (ii) make recommendations on further means of dispute settlement, notably including referral to the International Court of Justice in conformity with the statute of that court.

This avenue implicates difficult legal questions. First and foremost is the question of whether this issue of state cooperation in the arrest of al-Bashir relates to ‘judicial functions’ of the ICC or would qualify as a dispute (i) not pertaining to judicial functions, (ii) arising between two or more states parties and (iii) concerning the interpretation or application of the Rome Statute. How this question is answered might well depend on the position one takes on the article 27/98 relationship: some might see the article 98 disputes as concerning the judicial function of the ICC; but others might maintain a strict separation between the exercise of jurisdiction by the court and cooperation obligations on states parties to argue that such a dispute is a non-judicial one, governed by article 119(2) of the Rome Statute.

As turgid as these questions may be, they may raise deeper political divides. Who decides what is ‘judicial’ and what is ‘other’ is not clear – and quite circular – but if it goes to the ICC’s Assembly of States Parties an unpleasant North-South divide might emerge. What is more, even if it is determined that article 119(2) – and the International Court of Justice – is the appropriate route, questions remain regarding how this will play out. Chiefly, which two states will be the parties to the dispute?

The route chosen by African states would influence the subject matter of the dispute to be resolved by the International Court of Justice. If an advisory opinion is sought it could address a broad range of legal issues such as: (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of UN Security Council resolutions referring matters to the ICC on (i) and (ii).

However, should African states take the article 119(2) approach, then the Rome Statute would seemingly require the question posed to the International Court of Justice to be more narrowly tailored to the question of immunities under the Rome Statute as a dispute ‘concerning the interpretation or application of the Statute’.

The upshot of these difficulties is that there is a long way to go before the AU Assembly’s concerns regarding the ICC reach the International Court of Justice. However, expressing an interest in resorting to the International Court of Justice to gain clarity should be welcomed (and encouraged) as a positive step towards a legal solution to a problem with immense political significance.