Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification

Abstract

At its thirtieth ordinary session, the AU decided that the United Nations General Assembly (UNGA) be asked to seek an advisory opinion from the International Court of Justice (ICJ) on the question of immunity of head of states and other senior officials, in relation to articles 27 and 98 of the Rome Statute of the International Criminal Court 1998 (Rome Statute) and states parties’ obligations under international law. The issue of immunity in the context of state cooperation obligations under the International Criminal Court (ICC) legal regime lies at the heart of the Al-Bashir case, and is a contentious issue that has contributed to the deteriorating relationship between the ICC and the AU. Against the backdrop of the Al- Bashir case and the key issues arising in the case warranting clarification that we identify in this article − the meaning of article 98(1) in the context of head of state immunity, solving potential conflicting treaty obligations to (not) cooperate, waiver of head of state immunity by the UNSC, and hierarchy of sources of international law on the relevant issues − we contend that seeking clarification from the ICJ is indeed a more advantageous and appropriate way forward for African states to pursue than the proposed collective withdrawal from the ICC. To this effect, we also argue for the unsuitability of collective withdrawal as a solution to the AU/African states’ concerns around ICC prosecution.