A Structuralist Approach to the ICC/AU Conflict over the Immunity of Al-Bashir

Abstract

Between 2009 and 2019, a conflict emerged between the African Union and the International Criminal Court (ICC) over whether the then-incumbent President of Sudan, Omar al-Bashir, enjoyed immunity from arrest. The African Union maintained that Al-Bashir, as a head of state, continued to enjoy immunity from arrest, while the ICC in a number of judgments found that Al-Bashir’s immunity had been extinguished and he must therefore be arrested. Each organisation relied on conflicting interpretations of international law in order to support their respective positions. In this article, I examine these conflicting interpretations according to Martti Koskenniemi’s structuralist approach to international law, particularly in respect of his work on the indeterminacy of international law and the structural biases of international institutions. In doing so, I aim to produce a deepened understanding of the conflict, as well as an institutional critique of both organisations.