Immunity, Accountability and Politics – the AU’s bid for an ICJ Advisory Opinion

Published 26th June 2018

This article first appeared on Blog of the Gronigen Journal of International law on 25 June 2018.

Sudanese President Omar al-Bashir’s continued visits to Rome Statute Member States, including but not limited to Chad, Malawi, the Democratic Republic of Congo, South Africa and most recently Jordan, have caused much legal consternation and uproar from both divides of the head of state immunity debate. It has also provided significant momentum for the African Union (AU) to finally seek an advisory opinion from the International Court of Justice (ICJ) on the matter.

During the 30th Ordinary Session of the African Union, held on 28 – 29 January 2018, the Assembly requested that, ‘the African Group in New York immediately place on the agenda of the United Nations General Assembly a request to seek an advisory opinion from the International Court of Justice on the question of immunities of a Head of State and Government and other Senior Officials as it relates to the relationship between Articles 27 and 98 and the obligations of States Parties under International Law.’ Much has been said about the significance of this step. The advisory opinion will depend on how the AU’s question and request is framed and, as that is still unknown, it is difficult to speculate on what the possible outcomes could be. However, it may not be as straightforward as has been frequently suggested, and more importantly, whilst it is important to explore all legal avenues, one should ask – will the opinion (irrespective of the outcome) really help to settle the immunity question?

The first challenge will be that the AU and its Member States must somehow gain the support of the United Nations General Assembly (UNGA), which is easier said than done. Are there enough states which would support this venture? Granted, there are states which hold that the Court’s opinion would be advantageous as the ICJ would look at the issue broadly and through the lens of all existing international law instead of being chained to the Rome Statute.

However, there are some states who feel an ICJ opinion is unnecessary as they stand by the ICC rulings, which, albeit for different reasons, have come to the same conclusion – namely that States Parties have a duty to arrest Bashir (or anyone else who finds themselves in his unenviable position) for subsequent transfer to the Hague. Many States are of the opinion that (depending on the outcome), the Court’s ruling could cause a friction between two international courts that are tasked to adjudicate different matters, and have different jurisdictions, as noted by Tladi and Du Plessis.

There are also those who firmly believe that the ICC Appeals Chamber should have the last word on the matter. Jordan’s failure to arrest Bashir when he was on Jordanian soil on 29 March 2017 resulted in the Pre-Trial II Chamber ruling that Jordan committed an act of non-compliance warranting referral to the United Nations Security Council (UNSC) and the Assembly of States Parties (ASP). Jordan is appealing the decision and, for the first time, the Appeals Chamber will have to consider a referral of a State Party’s non-compliance to the ASP and the UNSC. It will be difficult for the Appeals Chamber to avoid addressing the proverbial elephant in the room, which is of course the question of head of state immunity and arrests by third party states at the ICC’s behest.

Assuming the UNGA is successfully convinced to submit the request to the ICJ, the next hurdle could be that the ICJ may refuse to grant the advisory opinion, as they it has discretion. The Statute of the ICJ states in Article 65 that it ‘may’ give an advisory opinion when so requested by authorised bodies of the UN. To date, the ICJ has never refused to give an advisory opinion, but its predecessor, the Permanent Court of International Justice (PCIJ), did do so. The PCIJ refused to render an opinion on the Eastern Carelia matter on the basis that one of the parties to the dispute, Russia, (which was also not a member of the League of Nations at the time) had not given its consent. As pointed out by Akande, the ICJ is yet to refuse on this basis and, although the Carelia precedent is yet to be officially overturned, it has not been applied.

If the UNGA is convinced to make the request and if the ICJ accepts, it remains to be seen just how much weight the advisory opinion will carry in reality. Advisory opinions are generally non-binding. However, they are regarded as having ‘moral authority and significant legal weight’ and they ultimately set a precedent that is likely to be followed. But in the context of the immunity question, is this sufficient to guide the conduct of states? Some would respond in the affirmative, indicating that part of the allure of the ICJ advisory opinion is that it would be accepted by the AU given that they have requested it and due to the fragile, distrustful relationship between the AU and the ICC.

In my opinion, that would only be the case if the ICJ issued an opinion that favours customary international law immunity for sitting heads of state. Assuming the ICJ did the opposite and issued an advisory opinion that was in line with the ICC judges’ steadfast bottom line, states pursuing a purely political agenda will behave in their own self-interest regardless of what the law states. For example, when Bashir visited South Africa, where the domestic International Criminal Court Act was very clear on the duty to arrest suspects wanted by the ICC and there was a domestic arrest warrant for Bashir, a court order preventing his departure and another ordering his arrest, political considerations still prevailed over the rule of law and justice for egregious crimes.

Therefore, politically – and realistically – speaking, the ICJ opinion may not move the issue any further if it does not correlate with political self-interest. Naturally, from a purely legal perspective, no matter the outcome, it will be of significance but, as pointed out above, political considerations have regrettably been known to trample on the rule of law.

The road ahead for the AU and its desire for an advisory opinion is rough and lengthy and only time will tell. In the meantime, the ICC Appeals Chamber has a valuable opportunity by way of the Jordan appeal to make its mark on this never-ending debate.

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