African States have traditionally been among the strongest supporters of the International Criminal Court. But since the proceedings began against President El Bashir of Sudan, just one year ago, the wind has changed. A few days ago, the African Union agreed by consensus to a resolution declaring that ‘The AU member states shall not co-operate... relating to immunities for the arrest and surrender of Sudanese President Omar al-Bashir to the ICC.’ The statement is not available on the AU website, but I have managed to obtain a copy: http://www.mediafire.com/?oiz295lpz0r.
President Mills of Ghana (which has a judge at the Court) told the media yesterday that 'he was convinced by the argument that the court's case against President al-Bashir differs from cases against former Congolese rebel leader Jean-Pierre Bemba and Ugandan rebel leader Joseph Kony'. It seems clear that by prosecuting an African head of State, some sort of qualitative change took place. The issue of immunity is not a simple one, and unfortunately the Bashir arrest warrant decision of March 2009 completely glossed over the nuances.
According to the Pre-Trial Chamber in the arrest warrant, Bashir has no immunity before the Court because article 27 of the Statute says there is no immunity before the Court. The problem – which the Pre-Trial Chamber did not address – is that article 27 may only apply to States that have joined the Court. Immunity of heads of State results from customary international law, and it seems it can only be taken away from a State if it agrees. That is what article 27 does. By ratifying the Rome Statute, States agree that their head of State enjoys no immunity before the Court. And that is why article 27 only applies to States that have joined the Court, and not to States that have. A day or two after the arrest warrant against Bashir was issued, the Guardian editorialist perceptively noted that the Americans, in their glee about the arrest warrant, should understand the consequence: their president too is subject to prosecution by the Court. Like most provisions in the Statute, there is more than one plausible interpretation. But the judges of the Pre-Trial Chamber might have addressed the difficulty and not ignored it.
Many commentators answer that Bashir has lost his immunity because of the Security Council resolution. The case comes to the Court not by the consent of Sudan but by resolution of the Security Council. But that argument is not straightforward either. First, the Security Council did not strip Bashir of his immunity in any explicit manner. So the theory that its resolution removes his immunity is based upon implication. Here’s the problem: the Security Council only triggers prosecutions at the Court, it does not change the Statute. The Security Council cannot add crimes to the Statute, or change the age limit for prosecution, or require it to deal with cases prior to 2002. I think the Security Council takes the Statute as it finds it. It is in no different a position than a State Party that refers a situation to the Court. And if a State Party cannot refer a situation to the Court by which a head of State is stripped of immunity, then how can the Security Council do it?
Whatever the legalities – and these legal problems are raised in the African Union resolution – the real problem is a political one. The Court hardly needs this antagonism from Africa. When the Prosecutor declined to go after the British with respect to war crimes perpetrated in Iraq, many found his explanations to be unconvincing. It was often said that the decision was ‘political’, because it would be reckless to bite off such an ambitious case in the early years of the Court. And that made some sense. If the United Kingdom were to be angry with the Court, then that might have serious consequences, especially in its fragile, early years.
Instead, the Prosecutor has chosen ‘soft targets’, compliant African States. But it looks like the Court may have bitten off more than it can chew. If the Court is going to be ‘political’ about NATO States, and about its wealthy supporters, then it needs to show the same kind of deference to African States. Otherwise, they will react just as they have done. We all want a Court that is free of these political concerns. But as it flexes its muscles and shows that it is not afraid to go after even a head of State, maybe it should have started with a European instead of an African?