Rule of law and rule of politics. AU and ICC in the Bashir case

On March 2009, the International Criminal Court issued a warrant of arrest for Omar Al-Bashir, President of Sudan and alleged responsible of genocide (Rome Statute, Article 6), war crime (Article 8) and crimes against humanity (Article 7) in the region of Darfur, Western Sudan, between 2003 and 2008. As a result of the on-site investigation issued in 2008 by the Court, the Prosecutor could indeed confirm «reasonable grounds to believe» that Bashir has been the perpetrator or indirect co-perpetrator of large-scale violence committed by Sudanese forces and Janjaweed militias in Darfur, in response of the armed rebellion conducted by two local movements against the marginalization of the area within Government’s policies. Nowadays this civil conflict has been resulting in over 300,000 people brutally murdered, and at least 2.2 million others forced to flee their homes. Therefore, within the meanings of the Article 58 of the Rome Statute, the Pre-Trial Chamber followed up the application of the Prosecutor and Sudan received the request for Bashir’s arrest and surrender. According to it, the Statute provided for the President to stay within Sudan’s custody until appearing before the Court, excluding then any possibility to leave its borders. In short, Omar Al-Bashir has been the first serving head of State to be indicted by the ICC.

Nevertheless, despite the indisputable premises, the controversial involvement of other actors as well as instruments of international law is leading to a new failure of ICC’s principles and purposes. First of all, Sudan is not a member State of the Rome Statute, and since the Statute is governed by the Vienna Convention on the Law of Treaties and its Article 34, this cannot impose obligations on third States without their consent. This concept has been also recovered in the Statute itself: particularly Article 98 does not allow the Court to proceed with issuing the request of surrender unless cooperation had been previously agreed by the third State. However official sources confirm that, from the moment of the warrant notification, the President has been traveling with impunity to other ICC member States in Africa and Middle East (such as Chad, Djibouti, Kenya and Nigeria), although the Court issued a second warrant in 2010. But the case definitely has come up loudly in June 2015, after Bashir left Khartoum to participating to the 25th African Union summit in Johannesburg, where leaders from all over Africa gathered to discuss common measures to face the ongoing political crisis in Burundi. Once Bashir landed in South Africa, signatory State of the Rome Statute, a human rights group headed by the Southern African Litigation Centre (SALC) and the South Africa’s major opposition party (Democratic Alliance) immediately petitioned the High Pretoria Court to consider the ICC warrants and order the arrest for the Sudanese leader. Nevertheless, although Judge Hans Fabricious apparently ordered all ports in the country to be closed while the request was analyzed, both South African and Sudanese Government confirmed Bashir’s departure on the second summit day. Then the research question is: did South Africa fully comply with the rule of law imposed by the ICC? At a first glance, the answer looks negative. Indeed Article 97 of the Rome Statute covers this eventuality by stating that, in case a State Party encounters any problem in executing a Court’s request, «that State shall consult with the Court without delay in order to resolve the matter». Nevertheless South Africa’s responsibilities need to be carefully analyzed both from a juridical and a political perspective.

Inevitably the matter of immunity has emerged as the most relevant in this debate. While Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations grants immunity to every diplomatic agent from the criminal jurisdiction of the receiving State, Article 27(2) of the Rome Statute favors instead the jurisdiction of the Court over immunities or special procedural rules. The application of such article finds confirmation also in the UN Security Council resolution 1593 (2005): together with referring the situation in Darfur to the ICC Prosecutor, the Security Council invited the African Union to «facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region […]». An analogue precedent might be useful to figure out South Africa’s juridical responsibilities. In occasion of Bashir’s visit in the Democratic Republic of Congo in 2014, the local authorities did not cooperate with the Court for the Sudanese President to be arrested and surrender. It was rather implemented a decision adopted by the African Union on October 2013: Bashir would have benefitted of certain immunities because «[…] no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government». Therefore, the conflict lied between the African Union’s position and the SC Resolution 1593, supported by Article27(2) of the Rome Statute. Considering this, ICC found that DRC «has failed to comply with its obligations», basing its decision on two articles of the UN Charter. Indeed, Article 25 states that «[…] Members of the United Nations agree to accept and carry out the decisions of the Security Council», and according to Article 103 «[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the […] Charter prevail». In few words ICC’s decision has been that to refer DRC not only in front of the Assembly of States Parties, but also in front of the UN Security Council.

However these instable relations between African Union and ICC follow an extra-juridical line too, as widely confirmed throughout the last years. In response of the 2009 warrant of arrest, African States Parties to the Rome Statute showed a deep concern for the «consequences that the indictment has had on the delicate peace processes underway in The Sudan» and decided not to necessarily «cooperate pursuant to the provisions of Article 98 of the Rome Statute». Finally it was decided to «prepare […] guidelines and a code of conduct for exercise of discretionary powers by the ICC Prosecutor relating particularly to the powers of the prosecutor to initiate cases at his own discretion […]». This detachment has been deepened irremediably due to the indictment issued by ICC against Kenyan sitting President Uhuru Kenyatta in 2009 for his alleged responsibilities in the 2007-2008 post-election violence in Kenya. With the above mentioned judgment of October 2013 (one year before Kenyatta’s controversial absolution) the great majority of AU leaders had already taken a sharp position against the measures adopted by ICC in the regards of the Kenyan President and his vice William Ruto. Besides recognizing the importance of Kenya’s political stability in the fight against terrorism, the AU showed a strong concern about a «politicization and misuse of indictments against African leaders» and decided that Kenyatta would have not appeared in front of ICC «until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UN Security Council and the ICC».

Therefore, as well as Kenyatta’s lack of cooperation with the Court has been protected by the whole AU system, the current AU-ICC “Cold War” has been letting also Bashir’s freedom of movement in Africa not to be challenged anyhow and anymore. This thesis is likely to be further supported if AU is actually going not to be subject to any international Court and to follow a pan-African way of dealing with humanitarian law. In any case, Bashir’s vicissitude in South Africa needs to be carefully verified from The Hague and Pretoria not to set up a dangerous precedent in ICC’s jurisdiction.