Balancing competing obligations: The Rome Statute and AU decisions

This paper delineates the international obligations on African states in respect of Bashir.

The fulcrum of African states’ discontent with the International Criminal Court (ICC) was the arrest warrant issued for President Omar al-Bashir of Sudan in 2009. In response, the African Union (AU) has taken a number of measures, the most controversial of which are the decisions that African states will not cooperate in the arrest and surrender of Bashir.

For African countries that are ICC members, these decisions present particular legal challenges: on the one hand, states parties are obliged under the ICC’s Rome Statute to cooperate fully with the court; on the other, the AU’s Constitutive Act warns that the failure of a member state to comply with AU decisions may result in sanctions being imposed.

After interrogating the legal aspects of these competing obligations, this paper delineates the international obligations on African states in respect of Bashir, considers the obligations on African states parties in respect of AU decisions, and presents two possible means of resolving the apparent conflict between commitments to the ICC and the AU.

About the authors

Max du Plessis is an associate professor of law at the University of KwaZulu-Natal, South Africa, a senior research associate at the International Crime in Africa Programme at the Institute for Security Studies in Pretoria, and a practising barrister. He has published widely in the fields of international criminal law, international law, public law and human rights.

Christopher Gevers teaches human rights and international criminal law at the University of KwaZulu-Natal, South Africa. His research focuses broadly on international law, with a specific interest in international criminal law and international humanitarian law, as well as international legal theory.