The African Union and the International Criminal Court: What to Do with Non-Party Heads of State?
27 Pages Posted: 7 Jul 2017
Date Written: July 5, 2017
In 2009 and 2010, the International Criminal Court (hereinafter ‘ICC’) issued warrants for the arrest of Omar Al Bashir of Sudan, after the UN Security Council (UNSC) referred the armed conflict in Darfur to it. This chapter examines the legal issues surrounding the refusal by the African Union (AU) to endorse co-operation by its member states in arrests pursuant to these warrants. The AU’s central legal argument made explicit in 2012 has been that incumbent heads of non-party states are entitled to immunity from arrest in international law, and that that immunity has not been affected by the Rome Statute of the International Criminal Court. This chapter will argue that, from a legal perspective, the AU’s position has plausibility, as the ICC has struggled to explain why arrest warrants are inherently enforceable relative to non-member states. It shows that this room for disagreement has permitted the AU to maintain its usual presumption in favour of incumbent leaders. It concludes that the UNSC and the ICC should accept the validity of the AU’s concerns, and take measures that would allow a definite legal basis for them to be identified. Without that, the arrest of the heads of state of non-party states is likely to prove difficult in Africa.
Keywords: International Criminal Court, ICC, Al Bashir, UN Security Council, United Nations, Darfur, African Union, immunity
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