An African expert study on the AU concerns about article 16 of the Rome Statute of the ICC
This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.
Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. For many Africans, the ICC’s involvement in Sudan has come to reflect the skewed nature of power distribution within the UNSC and global politics. The result is that the uneven political landscape of the post-World War II collective security regime has become a central problem of the ICC.
About the authors:
Dapo Akande is a lecturer in public international law and co-director of the Institute for Ethics, Law and Armed Conflict at the University of Oxford. He has published articles in leading international law journals on aspects of the law of international organisations, the law of armed conflict, international dispute settlement and international criminal law. His article in the Journal of International Criminal Justice on the ‘Jurisdiction of the International Criminal Court over nationals of non- parties: Legal basis and limits’ was awarded the 2003 Giorgio La Pira Prize. He is a board member of a number of journals, academic and professional organisations, and has advised states and the African Union on questions of international law. In addition, he has advised and assisted counsel or provided expert opinions in cases involving questions of international law. In particular, he has worked on litigation in the International Court of Justice, the International Tribunal for the Law of the Sea, international arbitral tribunals, WTO and NAFTA Dispute Settlement Panels as well as cases in England and the United States.
Max du Plessis is a senior research associate with the International Crime in Africa Programme at the Institute for Security Studies in Pretoria, and an associate professor of law at the University of KwaZulu-Natal in Durban, South Africa. He also practices as an advocate and is a member of the KwaZulu-Natal Bar with a special expertise in international law, constitutional law and administrative law. Max has written widely in the fields of international criminal law and human rights and is a research associate at Matrix Chambers, London.
Charles Chernor Jalloh is an assistant professor at the University of Pittsburgh School of Law in the United States, where he teaches international law, international criminal law and criminal law. He holds a Bachelor of Arts from the University of Guelph and Bachelor of Laws and Bachelor of Civil Law degrees from McGill University, Canada. In addition, he earned a Master’s in international human rights law, with distinction, at Oxford University where he was named a Chevening Scholar. A member of the Ontario Bar, his work experience includes service as a legal counsel in the Crimes Against Humanity and War Crimes Section in the Canadian Department of Justice. For about three years, he was a legal advisor in the Special Court for Sierra Leone. Subsequently, he served as an associate legal officer in chambers at the United Nations International Criminal Tribunal for Rwanda in Arusha, Tanzania from where he moved to academe. His recent publications focus on how to bridge the tension between Africa and the International Criminal Court.
