‘This delicate mosaic may be shattered at any time’: The ICC, technocracy and the liberal West’s moral imperialism

By Margot Tudor 

Margot is an ESRC-funded PhD candidate in Humanitarianism and Conflict Response with the HCRI at the University of Manchester. Her main research areas of interest are peacekeeping, global governance, colonial continuities and the history of humanitarianism.

This article argues that the colonial continuities present in the operations and ideologies within the structures of the international justice system have diplomatic implications. By investigating the International Criminal Court’s (ICC) attempts to prosecute the President of Sudan, Omar al-Bashir, it seeks to verify accusations of anti-African bias and neo-colonialism. Additionally, the historical roots of these imperial legacies and their contemporary double standards have provided political weight to those attempting to evade international law. This project presents a uniquely holistic and interdisciplinary approach to unite the fields of global justice, transitional justice and post-colonialism through utilising the frameworks and literature from international law, history, international relations and politics. It intends to build upon the burgeoning literature considering the connections between ‘new imperialism and histories of humanitarianism’ (Edmonds and Johnstone, 2016, p. 1). It will be argued that the transitional justice process excludes victims from the production process of justice through legalistic and technocratic approaches which present Western approaches to justice as superior. This, therefore, divorces victims from their access to the judicial process. In this way, this project hopes to build upon post-colonial frameworks and use them to view the power sources within global structures and institutions, particularly those within the morality industries (humanitarian, governance or judicial).

Introduction

To them it is our part to give wise laws, good government, and a well-ordered finance, which is the foundation of good things in human communities… where the light of morality and religion can penetrate into the darkest dwelling places. This is the real fulfilment of our duties; this, I say again, is the true strength and meaning of Imperialism. – (Lord Carnarvon, cited in Cain, 2012, p. 563)

The International Criminal Court’s (ICC, or the Court) case against Sudanese President Omar Hassan Ahmad al-Bashir sits at the crux of several geopolitical and legal dilemmas currently holding the attention of the international community. News of al-Bashir’s arrest warrants – the second warrant added the genocide charge in 2010 (ICC, 2010) – echoed around the globe and yet the Court still awaits his presence in The Hague and his victims await justice (ICC, 2009). Eight years after the first warrant was issued on several charges of crimes against humanity and war crimes, al-Bashir walks free, retains his Head of State status and has regularly travelled outside Sudan to attend international conferences and diplomatic engagements (Nuba Reports, 2016). By examining the political stances of the African Union (AU), Sudan and the Court, the article will show how the Court’s procedures and theoretical approach to justice retains problematic elements of the historical evolution of international justice, diplomatic paternalism and moral imperialism within the Westphalian system. By examining the aftermath of the failed arrest warrants, it will demonstrate how far victims have been ignored in preference of a morally imperialistic and technocratic approach to justice. Overall, it will be shown that the ICC’s less-than-subtle approach to international criminal justice has aided al-Bashir in his evasion of justice as it has fractured diplomatic relations between the AU and the international community.

Recent accusations of neo-colonialism and excessive Western influence on the Court have contributed to negative media and diplomatic thought regarding the independence of the ICC (Peskin, 2009, p. 307). The perceived impartiality of the Court, as an arbiter of objective justice, is crucial to its success as a popular organ within the United Nations (UN) system and thus these criticisms have shaken the core of the beliefs which uphold the ICC’s operations. Victor Peskin’s interviews have shown how these allegations have influenced those who work for the Courtp.  ‘“It is a very harmful debate for us…and it is harmful to perceptions,” of the Court, lamented a high-ranking official in a December 2008 interview’ (Peskin, 2009, p. 307). It is with concerns of exploitation within the international legal system in mind that this article seeks to determine how far accusations of colonial continuities within the Court can be verified. In this way, this article argues that transparency and removal of all double standards is the only method available for improving participation in the endeavour of international criminal justice and ensuring that victims’ rights are prioritised. 

By looking at the African Union High-Level Panel on Darfur (AUPD) report in detail, this article will examine how the international intervention of the ICC in this case has not permitted ‘African solutions for African problems’ and how, instead, the Court has pursued a paternalistic attitude in its interactions with the AU (Maathai, 2010). It will show that the ICC’s preference for legalistic and technocratic approaches to justice have, in the tradition of Western international criminal justice cases, instrumentalised the victims within the court and oversimplified their experiences of the conflict for the ease of legal binaries. It will also explore how far the Court’s assumptions regarding liberal democracy can be seen as part of the broader peacebuilding strategy of the UN. Although peacebuilding intends to ensure stability for the future of a region, it also assumes that the Western vision of civilisation, as outlined in Fukuyama’s thesis, is the ‘end of history’ (Fukuyama, 1989, p. 3). Thus this attitude can lead to justice processes seeking morally imperialistic results (Marks, 1997, p. 474-475). As a UN representative of Sudan commented when the Security Council (UNSC) referred the case to the ICC:

The Council today did not settle the question of accountability in Darfur. Rather, it exposed the fact that this Criminal Court was originally intended for developing and weak states, and that is a tool for the exercise of the culture of superiority and to impose cultural superiority. It is a tool for those who believe that they have a monopoly on virtues in this world, rife with injustice and tyranny. (UN Doc S/PV.5158, 12)

Unpicking the assumptions that underlie the rhetoric, beliefs and therefore operations of the Court is crucial for understanding the implicit liberalistic attitudes towards non-Western approaches to justice. Filtering down through the global governance system are the preferences for legalistic, ‘expert’ and bureaucratised processes. Due to the ‘one-size-fits-all’/‘toolbox’ approach towards international criminal justice, the complexities of individual societies and the needs of minorities are ignored in preference of establishing a liberal democracy. These abbreviated approaches to justice, as part of the peacebuilding endeavour, remove all legitimacy from alternative judicial processes. As Rubli argues, ‘Social change is considered to be an outcome of legal-institutional reforms and hence, transitional justice is often externally imposed in a paternalistic and top-down way’ (Rubli, 2012p.  11).

Historical context

The development of international criminal justice

Establishing the historical context of the al-Bashir case is important for understanding the complex political circumstances of al-Bashir’s warrant. Before briefly describing the alleged crimes of al-Bashir’s government, it is important to analyse the ideologically fraught arena of international criminal justice, within which al-Bashir’s case will be deconstructed. The development of international criminal justice processes at the beginning of the Twentieth Century accelerated following the Second World War as transitional justice became a tool for the post-war Allies. Nuremberg served as an experiment into the foray of international criminal justice (Jackson, 1945), its first lesson being that the role of history, memory and victimhood are at the centre of its endeavour. Prosecuting a crime that holds such historical and political symbolism presents many unique obstacles that differ from domestic criminal proceedings. Appearances of objectivity are even harder when those at home might not fully understand the difficulties of working within legal frameworks where, ‘…emotions are “regulated” and subject to the requirements of the legal settings and procedures’ (Karstedt, 2016, p.  51). 

Additionally, the role justice plays in keeping the peace within a post-conflict society is paramount. The catharsis of a justice system can serve to aid a community in rebuilding and regaining stability; ‘In the long run, the absence of a fair judicial and penal system results in a failure to provide a sense of justice for the victims of war crimes, human rights violations, and other criminal activities, and that sense of justice is essential to achieving sustainable security’ (Field and Perito, 2002-2003, p. 81). The securitisation of justice – i.e. discussions about how far justice processes are an important tool for preventing further conflict – has been an area of scholarship that has grown in tandem with the peacebuilding rhetoric that will later become crucial to this article’s discussions of neo-colonialism. In this way, Nuremberg was the first site where international lawyers discovered the complex and unique requirements that (successful) transitional justice processes demand.

However, the advent of the Cold War caused the international community to reprioritise their diplomatic efforts, and prosecutions of Axis powers were no longer deemed necessary unless they incriminated those who occupied the Eastern European border (Bazlyer, 2016, p. 111). During the decolonising period, this pause of prosecutions seemed to indicate that international justice was no longer a luxury that could be afforded. The juxtaposition of the growing human rights rhetoric in Western politics jarred with the realities of their imperial crimes abroad (Klose, 2013, p. 48). As Sartre argues, ‘You who are so liberal, so humane, who take the love of culture to the point of affection, you pretend to forget that you have colonies where massacres are committed in your name’ (foreword of Fanon, 1963, p. 12). Only once the Berlin Wall was brought down in 1989 was the West keen to reignite its role as legal arbiter of human rights through the means of international justice processes (Kaptenijns, 2013, p. 425). To this end, the UN Charter’s Chapter VII was increasingly interpreted more flexibly as the global push for humanitarian interventions fought against the post-colonial struggle to protect sovereign integrity (Ayoob, 2002, p. 83). As Mamdani argues, ‘[t]he transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as ‘failed’ or ‘rogue’ states. The result [was] a bifurcated system whereby state sovereignty [is obtained] in large parts of the world but is suspended in more and more countries in Africa and the Middle East’ (Mamdani, 2010, p.  54).

The development of international criminal justice systems throughout the latter decades of the twentieth century has, therefore, taken place within the environment of a post-Cold War victory, a ‘New World Order’ narrative which has allowed the West to set the tone for what international justice entails and who it is for. The signing of the Rome Statute in 1998 and development of a permanent International Criminal Court in 2002 with the role of prosecuting individuals (as opposed to the mandate of the International Court of Justice which prosecutes member-states of the UN in a civil court) was quickly perceived as representative of much of the global community’s philosophical attitude towards international criminal justice:  the supremacy of globalised legalism over other forms of reconciliatory processes (Bongiovanni et al, 2014, p. 760). The ICC’s mandate was seen by many as ‘…the missing link in the international justice system’ (United Nations, 1998-1999). However, hopeful beginnings began to crumble as the ICC’s actions proved no more enlightened than the colonial biases and double standards inherent to the Permanent Members (P5) and veto structure of the UNSC. As Thakur argues, ‘…there is a growing perception that an initiative of international criminal justice, meant to protect vulnerable people from brutal national rulers, [that] has been subverted into an instrument of powerful against vulnerable countries’ (Thakur, 2016, p.  372).

Darfur and the alleged crimes of al-Bashir

The roots of the conflict in Darfur begin long before 2003 with the extreme political and economic marginalisation and oppression of the Western region of Sudan by government forces in the capital city, Khartoum. However, in February 2003 the Sudan Liberation Army attacked the government forces, which had been dominating their communities for years and utilising colonial economic and political structures. This initiated a disproportionate counter-response by the government who were keen to protect their social and political hierarchy within the region. The government utilised local ‘Arab’ militias, the Janjaweed, to attack those in the Darfur region. Al-Bashir’s government is accused of ordering the militias to terrorise the Darfur communities by burning villages, encouraging sexual violence and murdering thousands (Austin and Koppelman, 2004, p. 26). Mills has commented on the international response to the conflict, saying ‘The world was slow to respond. First came humanitarian assistance… A year or so later, newspaper editorial pages started referring to the conflict as genocide’ (Mills, 2012, p. 414). 

Legalism ‘barbarises’ its own victims 

In 1998, the ICC was hailed as the ‘Victim’s Court’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1), intending to put survivors and their families’ experiences of the international criminal justice system at the forefront of its priorities. Therefore, ‘In addition to being called as witnesses, victims would have the right to be heard by ICC judges at all stages of the proceedings’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1). Moffett argues that ‘The broadening of international criminal justice to be more responsive to victims brings challenges of its own in reconciling the need to deliver justice to potential thousands of individuals, against the logistical and financial limits of a single international institution’ (Moffett, 2015, p. 283). Perhaps a national court could hope for this level of victim support, but an international court with only five field offices has virtually set itself up for failure. 

Despite the recent ‘local turn’ (Mac Ginty and Richmond, 2013, p.  763) in peacebuilding in response to ‘frustrations at the technocratic and unresponsive aspects of orthodox peacebuilding policy’ (Firchow and Mac Ginty, 2013, p. 232), international justice practitioners have yet to respond to its critics with its own evolution. Human rights defenders on the ground have argued that ‘the Court remains too far removed from the field and from the concerns of the affected communities. Largely absent from the regions where the victims live, the ICC has not as yet succeeded in making itself known’ (Glasius, 2009, p. 510). In this way, the victims are removed from the consultation and procedural process and their experiences filtered through a Western legalistic process which has constructed tropes of African victims of conflict which are often found in ‘humanitarian’ marketing – often infantalised and in need of parental guidance (Kennedy, 2009). Apoliticising victims removes their identity which may have been the reason for their victimhood in the first place. Removing a victim’s political agency from their involvement in the Court process is not only offensive to their capacity for autonomous voice (Moffett, 2015, p. 286) but is also detrimental to the Court’s understanding of the conflict. As was seen in the Nuremberg Tribunals, many Jewish victims felt that the prejudice against their identity had been erased in preference of interpreting the Holocaust as ‘yet another manifestation of the atrocities performed by the Germans in the countries they occupied’ (Yablonka, 2012, p. 303).  

One of the reasons for the Court’s detached attitude in regards to victims and their families is its idea that they would complicate the judicial process as they do not fit neatly into legalistic language. Instead, their narrative is co-opted and manipulated to suit the Western framework of justice. Thus, they ‘were treated as objects of moral concern, rather than subjects with any rights to present their own interests’ (Moffett, 2015, p. 283). In addition to logistical issues such as language interpretation and physically encouraging a witness to attend the trial at The Hague, there are power imbalances which intentionally attempt to remove the ‘local’ from the Courtroom, which arguably derives directly from the colonial experience. As Doughty argues, ‘Ethnographic work on bilingual courtroom transitional in post-colonial or colonial contexts emphasises power-laden linguistic shifts that occur between ‘local’ language and ‘courtroom’ language, where ‘local’ means both ‘nonlegal’ and ‘nonwestern’’ (Doughty, 2017, p. 245). This sanitised approach favours Western assumptions of what victims want rather than including them within the consultation process. As Rubli has discovered, ‘The lack of context knowledge is mostly substituted with expert knowledge. It is often based on ‘received wisdom’ and assumed causal beliefs about transitional justice or ‘experts’ simply evoke international norms and standards without linking them to the context. Thereby external ‘expert’ knowledge is considered to be superior and trump popular and indigenous conceptions about how to deal with the past’ (Rubli, 2012, p. 11).

Attitudes towards transitional justice and international law – and decisions over who is allowed in the process and to what degree – are directly involved in constructing the political narrative of the community’s future (Tietel, 2002, p. 385). The recurrent exclusion of victims from the future narrative of their own communities’ possible reconciliation highlights the paternalism of this approach. Impartiality, within the ‘uneven moral economy of international justice’ (Doughty, 2017, p. 246), is illusory, as it sets out to silently bias the more powerful approach (i.e. the status quo of international justice – a Western approach) and ignores the structural imbalances which remove victims from their intended procedural role and agency within their own historical and legal narrative (Moffett, 2015, p. 287). Therefore, ‘The legalist lens that transitional justice takes limits the focus to specific sets of actors for specific sets of crimes committed within a rather artificial period of time, and thus determines the categories of when, to whom and for what transitional justice applies’ (Rubli, 2012, p. 10). 

Legalism has also encouraged the structural preference of legal binaries:  innocent/guilty, victim/perpetrator, bystander/rescuer, etc. With her new studies of the realities on the ground, Lee Ann Fujii has shown that genocidaires should not be painted as wholly evil as this erases the reality of their behaviour. Appreciation of the reality of complex wrong/right-doing during conflict would help to bring the Court’s interpretation of the conflict into better alignment with the actions in the conflict. As Fujii has explored, ‘…even the most active killers – those who clearly fall under the category of “perpetrator” – were capable of acts of rescue when the circumstances allowed them to do so. Acts of rescue, to be sure, did not absolve or make up for their participation in mass murder. Yet, to overlook these acts of rescue would be to overlook the extent and form of rescue activities during … genocide’ (Fujii, 2014, p. 157-158). In this way, the legal binaries of Kohn’s described ‘epochal contest’ allow those in power to choose who it is politically advantageous to demonise through unrealistic assumptions about behaviour in conflicts.

Ignoring the complexities on the ground for the ease of fitting into the ‘one-size-fits-all’ legal framework will do little to aid the additional reconciliation efforts that are performed in addition to judicial routes (Rubli, 2012, p. 11). This bureaucratised method of peacebuilding through justice dehumanises those who are experiencing conflict by using metaphors like picking and choosing peacebuilding ‘tools’ with which to ‘[mix] paint’ (Goetschel and Hagmann, 2009, p. 62). These detached metaphors further patronise the locals’ failure to solve the complexities of the political situation. The political and emotional influence of the trial should not be neglected and more holistic approaches must be employed to better perform justice for victims on the ground – distant from the Court and yet directly influenced by its outcome. Thus, ‘[t]ransitional justice mechanisms have all too often been introduced without regard for the internal dynamics of the society for which they were intended, and thus are “abstract from lived realities”’ (Rubli, 2012, p. 11).

The Mbeki Report and the power of self-determination

The Mbeki Report (also known as the African Union High-Level Panel on Darfur or AUPD) was the result of the Peace and Security Council’s (PSC) decision to confront ‘issues of accountability and [combat] impunity…and reconciliation and healing…’ whilst simultaneously requesting a deferral from the UNSC (Mbeki, 2009, p.  205). Some have argued that the report was supposed to replace the need for the ICC’s intervention but this section will argue that the report clearly seeks justice and accountability from those guilty of crimes in Darfur; it simply requests that it be an African process so as to be part of a cathartic process of healing for Sudan.

As an influential politician, Thabo Mbeki’s comments have had a wide reach within the AU and those interested in the geopolitical shift towards ‘African Solutions for African problems’. The (physical) fight for self-determination in post-colonial years has been seen as an encouraged method of rebuilding oneself following the oppressive psychological damage of colonial rule (Fanon, 1963, p. 94). As such, the battle continues for autonomy within the humanitarian sphere:  the right to protect one’s neighbour. Mbeki writes that he believes ‘it is Africa’s crisis and, as such, Africa has a duty to help the people of Sudan to achieve a lasting solution’ (Mbeki, 2009, p. 206). In this way, the AU is establishing itself as a defender of human rights, determined not only to investigate the truth of the crimes committed, but also to ensure that those believed guilty will face a courtroom. As an ‘idiom in most African cultures [states,] you do not fold your hands and just look on when your neighbour’s house is on fire’ (Kiokio, 2003, p. 820). Mbeki’s report reads as a manifesto for the AU’s increased role in global governance, recognising the need for support from the international community whilst establishing itself as a respected party with a significant stake in the case. Therefore, understanding that ‘the task [of implementing their Recommendations] also requires commitment from, and action by, various actors and entities, especially the Government of Sudan and other Sudanese stakeholders, the neighbours of Sudan and the rest of the international community, including the United Nations’ (Mbeki, 2009, p. 206). 

Ignoring the potential for self-determination, or encouraging it only through conditionality, can be damaging to the independent stability of a post-conflict state, which in turn ignites development debates surrounding dependence (Brett, 2016, p. 3). Paradoxically, by removing autonomy from the victims, the West both highlights its fears of a ‘un-modern’ post-conflict state whilst also picturing post-conflict states as political ‘blank slates…[implying] that post-conflict societies represent a social and political vacuum’, fertile for transformation into liberal democracies (Rubli, 2012, p. 16). In reality, the AUPD has stated that this belief, and the paternalistic steps that often follow the assumption of apolitical post-conflict states, is dangerous to the future of an independent Sudan. They argue that, ‘Both the Sudanese actors and players in the international community should understand that what Sudan needs is strong and cohesive leadership collectives which enjoy the necessary confidence of the constituencies they lead, to enable them to ensure that these constituencies participate seriously as agents of change in the process of giving birth to a new Sudan’ (Mbeki, 2009, p.  210). 

In line with the principle of complementarity, Sudanese opposition politician Sadiq al-Mahdi has argued that a hybrid court (with both Sudanese and international judges) may provide the best solution for encouraging greater Darfurian consultation, and most importantly, may be the only logistical option that could physically put al-Bashir in the dock (The Economist, 2008). 

The Court and its ‘Mission Civilisatrice’ 

The history of geopolitical movements in the twentieth century have directly influenced how we determine success in justice processes today. Rubli states that ‘The dominant normative lens (to facilitate transitions to democracy) determined which kind of justice measures were considered as appropriate and why certain measures were recognised as the legitimate justice initiatives during a time of political change’ (Rubli, 2012, p.  5). The rhetoric of liberalism and what we determine as a ‘successful’ state is at the core of international justice discourse since the Court’s involvement is part of a larger political endeavour to ‘transition’ a ‘failing’ state into a liberal democracy (Sooka, 2006, p. 313). As Fletcher et al.’s empirical study argues, ‘if states are closer on the continuum of liberal democracies, the necessity for an intervention seems to be less immediate… This raises the question of whether universal principles can be enforced and whether that is even a desired goal’ (Fletcher et al, 2009, p. 217). This is despite the fact that, ‘[marketisation and democratisation are] often more destabilising and may even provoke a return to conflict [when believed to be, in of themselves, sources of peace]’ (Sriram, 2007, p. 579). 

In this way, the Western desire for cultural, political and moral supremacy over other states – through the judicial expansion of liberal market ‘human rights’ rhetoric – seeks in reality to limit the autonomy of more fragile states in a paternalistic fashion (Paris, 2002, p. 638). Therefore, in a palliative sense, the West manipulated its ‘White Man’s Burden’ of fighting for universal rights into a method of utilising justice systems to ‘resign’ from the ‘systematic economic abuses and the legacies of inequality and poverty,’ which lie at their door (Rubli, 2012, p. 15).

The roots of many conflicts within ex-colonial countries, including Sudan, are permeated with the injustices experienced due to colonial territorial or economic divisions (Mbeki, 2009, p. 207-208). One could argue that the hypocrisy of these impunities, which remain largely unknown and through which the disastrous consequences of self-interested censorship missions like Operation Legacy (Sato, 2017, p. 5) have been made visible, has contributed to outrage over the lack of non-African prosecution within the ICC (Thakur, 2016, p. 372). Although the ICC has restricted itself to crimes from 2002 onwards, it is not the first criminal justice strategy that has been manipulated by the international community so as to protect Big Interest states and ensure their cooperation with the globalisation vision. The legal strategies constructed by the international community to hide violence in the colonies exemplify the double standards that are implicit in the definitions of what a ‘war crime’ has come to mean in contemporary international criminal justice. It seems that the power of colonial nations, and their authority over the construction of the Geneva Conventions, the UN and global humanitarian norms, has allowed Britain and France to forge the laws of war to their benefit and to the detriment of their combatants. Utilising their position as leaders of the new humanitarian movement of the post-World War II international community, they have been able to manipulate the legal definitions that we still use today. Indeed, by: 

[d]escribing the situation with euphemisms like “civil unrest” and “events,” the governments in London and Paris attempted not only to cover up the true nature of the conflicts but also to criminalize their opponents and deny them any legitimation… Because the insurgents lacked the status of combatant, they could not assert a claim to the protection accorded by international humanitarian law. (Klose, 2011)

Violence was a common tool for imperialists in their approach to expansion, oppression and the civilising mission, and they manipulated legal boundaries to ensure their right to use force. During the decolonising period, their definitions were used to carefully curtail details of reprisals to demonise the ‘savage’ indigenous people who were painted as the truly violent ones; mass murder, genocide and eugenics programmes were redefined as benevolent policies of education or policing (Monbiot, 2005). Indeed:

[s]everal passages of the Geneva Convention drafts, such as the prohibition of “collective punishment,” gave the British Colonial Office especially big headaches since this and other prohibited measures were common and efficient instruments used by the colonial governments to squelch unrest. The burning down of entire villages in Malaya and the punitive bombardments in the Protectorate of Aden illustrated, in the eyes of the Colonial Office, the value of collective punishment measures, and the authorities fought resolutely to prevent such effective means from being taken away from the local security forces (Klose, 2011).

Equally, as Mamdani has argued, this moral supremacy of the West’s ‘civilised’ violence versus the ‘immoral’ reprisals of those in more unstable countries speaks volumes towards the political power of legal rhetoric and the implicit biases in the chosen definitions. Only through transparency and increased democratisation of global governance structures can sovereign equality be achieved in a system built to allow international justice to become a tool of manipulation for imperialists to avoid accountability. Additionally, ‘[o]ne should not forget that the ex-colonial powers – especially France – continued to play strong economic and military roles in their former colonies, making the introduction of accountability measures very difficult’ (Arthur, 2009, p.  342). Definitions for international crimes – and the legal parameters protecting Western strategies of war that remain indiscriminate against civilians on the ground – remain the purview of the states who see their use of violence as somehow more necessary and acceptable than that of less powerful states (Anghie, 2006, p. 744). In this way, ‘[t]he point of the distinction is to reserve universal condemnation for only one form of mass violence… but at the same time to treat both counter-insurgency and war between states as normal developments’ (Mamdani, 2010, p. 57).

Contemporarily, these definitions continue to allow the West to avoid accountability for their methods of violence (i.e. drone attacks, counter-insurgency and unauthorised interventions) which are legally determined as normal standards of the use of force in warfare, rather than considering these violent strategies as similar to other war crimes due to their indiscriminate nature (Maurer, 2013). In this context, the ICC’s influence has been to reinforce the definitions which provide immunity to the most historically powerful nations. As Thakur argues, ‘Self-evidently, only non-Western governments can be norm-violators; Western governments—Abu Ghraib, Guantánamo Bay etc. notwithstanding—can only be norm-setters and norm-enforcers’ (Thakur, 2016, p.  372). 

These legal frameworks also encourage the international community to view violence in more unstable regions as ‘backwards’ or ‘tribal’, as seen with the Rwandan genocide (Des Forges et al, 1999), versus the ‘modern’ and more technologically advanced weapons of the West which are supposedly seen as more morally robust. In the eyes of the Western powers, ‘[s]uch technological prowess holds the seductive promise of ‘war lite’ and ‘morality lite’ with respect to blood, treasure and conscience’ (Thakur, 2016p.  374). Yet this is a legal and rhetorical difference rather than a material one, and it is a double standard that is attracting the condemnation of many African nations who hope that ‘[soon] the discrepancy between the West’s universalistic rhetoric of principles and particularistic pursuit of interests is going to be increasingly unsustainable’ (Thakur, 2016, p. 371).

Conclusion

When the law is applied selectively, the result is not a rule of law, but a subordination of law to the dictates of power so flagrant that the outcome is more reminiscent of feudal privilege than of a bourgeois rule of law. – (Mamdani, 2010, p.  62)

In conclusion, the bureaucratic and technocratic preferences of the West in their peacebuilding strategies implicitly encourage a top-down and distant approach to justice which is at odds with the requirements of the justice processp.  prioritising the victims’ solace (Moffett, 2015p. 281). In this way, the most logistical, diplomatic, and least damaging option would be for the establishment of a hybrid court under the control of the AU. If the ICC continues its stalemate with the pro-sovereigntist contingency of the AU, al-Bashir will never face justice, which is to very few people’s benefit. As Stephen Lamony argues, ‘Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan’ (Lamony, 2015).  In this way, the AU has not ignored the horrific crimes al-Bashir has been accused of in Darfur but rather has been at the forefront of the crisis despite being ignored by the UNSC. This is not to say the AU has presented the ultimate solution to the Darfurian crisis, but to ignore its involvement and the power it holds over its member states, is to be diplomatically ignorant of the considerable tensions involved when indicting a sitting President. As Mamdani has argued, ‘The decision as to who to target, and who not to, is inevitably a political decision’ (Mamdani, 2010p. 62). This point is especially prudent considering that al-Bashir’s case involves the indictment of a sitting head of state, rather than an already incarcerated leader.  Peace is sought by the AU and ‘While the AU has requested that the arrest warrant be suspended, it has not suggested that Bashir not face justice. Indeed, it even debated whether the AU could try him. This is not the sign of an Africa that is turning its back on justice. Rather, it indicates an Africa that is arguing with itself and the international community over how best to proceed (Mills, 2012p. 445). 

If the West provided genuine support for ensuring that the ICC enact justice without resistance from African nations, it could compel the UN to bring an end to some of the more glaring double standards that are currently protected by their legal and institutional structures. Currently, the ICC is subject to many of the ideological vulnerabilities and colonial continuities which have filtered down from the colonial history of the UN, therefore causing diplomatic tensions and preventing the effective operations of the Court. More importantly, al-Bashir’s victims are caught in the middle as international law is restricted by differing interpretations. As examined in this article, the colonial selectivity of international law procedures has a long history of protecting powerful nations (Anghie, 2006p.  741), and it is unlikely that the P5 nations will be willing to loosen their grip on these benefits. However, with the current trends in geopolitics indicating that the West is no longer in the honeymoon period of the post-Cold War victory years, it is thought that ‘[a]s relative power shifts away from the West, the ability of the latter to exempt themselves from the reach of global norms will lessen. They will have to accommodate to the new normal either by bringing their conduct within the operation of international normative instruments, or by accepting a softening of the latter’ (Thakur, 2016p. 376). 

As this article has explored, there is a political momentum within African nations which is seeking to deconstruct the liberal and neo-colonial biases and structures at the core of the international criminal justice system. As Anghie argues, ‘Rather than adopting the traditional view of sovereignty as an exclusively European product extended into a non-European world that was somehow, naturally, non-sovereign, we might see sovereignty doctrine as consisting in part of mechanisms of exclusion which expel the non-European society from the realm of sovereignty and power’ (Anghie, 2006, 741). It seems that non-Western states will no longer accept the double standards which inherently prejudice their experience with international law and political norms. 

The current impasse between the AU and the ICC is not a topic to be wholly demonised by the international community as many of the AU’s criticisms have been verified. In this way, double standards are further protected and P5 members are able to strategically protect or target those which best suit their interests through the power of the UNSC veto. The colonial structures of these procedures are concerningly visible in their influence despite efforts during the decolonisation period to exclude imperial influence. Greater international acknowledgement of the violence and war crimes caused by colonial powers during the decolonising period would also help to balance the scales of global justice, and perhaps open discussions regarding the structural harms of colonialism (Blanton et al, 2001, p. 475). The assumptions at the heart of the ICC, and the transitional justice industry more broadly, encourage paternalistic and neo-colonial policies which directly prevent victims from experiencing justice for their own sake, the transitional justice process only playing a small part of the broader peacebuilding effort. Although it is accepted that the judicial process is intentionally built alongside other reconciliatory approaches, it would be wise for the transitional justice industry to learn from the mistakes of the peacebuilding field in its apolitical-and-yet-political endeavour to spread liberal democracy via ‘impartial’ humanitarian vehicles. 

This article has sought to provide an initial study into the diplomatic implications and pervasive legacies of colonialism within the spheres of global justice and governance. Overall, it is clear that the processes of international justice are political, and that the legalistic preference of Western judicial procedures is largely unsuited for the holistic and contextual needs of post-conflict international justice (Rubli, 2012p.  11). In this way, the Court’s bureaucratised approach to the al-Bashir case has only aided its critics in highlighting its liberal and technocratic assumptions when it comes to international criminal justice: victims excluded, peace negotiations stymied, and the AU ignored. In its simplest form: whilst most agree that al-Bashir should face justice for his crimes in Darfur, the crux of the debate centres on what the judicial process should look like. ICC, AU Court, AU-Sudanese hybrid, or even an AU-ICC hybridp.  none of these present a universally accepted model. However, as a final recommendation, it could be suggested that a greater investigation into the diplomatic collaboration of the AU-UN’s hybrid peacekeeping mission (UNAMID) may indicate that perhaps an AU-ICC court could be the most logistically and theoretically successful option for al-Bashir’s prosecution.

Bibliography

Anghie, A. 2006. ‘The Evolution of International Law: Colonial and post-colonial realities’, Third World Quarterly, 27(5), pp. 739 – 753.

Arthur, P. 2009. ‘How “Transitions” Reshaped Human Rights:  A Conceptual History of Transitional Justice’, Human Rights Quarterly, 31, pp. 321-367.

Ayoob, M. 2002. ‘Humanitarian Intervention and State Sovereignty’, The International Journal of Human Rights,6(1), pp. 81-102.

Bazlyer, M. J. 2016 Holocaust, Genocide and the Lawp.  A Quest for Justice in a Post-Holocaust World. Oxford

Blanton, R., Mason, D. T. and Athow, B. 2001. ‘Colonial Style and Post-Colonial Ethnic Conflict in Africa’, Journal of Peace Research, 38(4), pp. 473-491.

Bongiovanni, G., et al. 2014. ‘Philosophy of Law and International Criminal Law:  Between Peace and Morality’, International Criminal Law Review, 14, pp. 738 – 767.

Brett, E. A. 2016. ‘Explaining Aid (In)Effectiveness:  The Political Economy of Aid Relationships’, LSE International Development Working Paper, No.16-176, pp. 1-19.

Cain, P. J. 2012. ‘Character, ‘Ordered Liberty’, and the Mission to Civilise: British Moral Justification of Empire, 1870–1914’, The Journal of Imperial and Commonwealth History, 40(4), pp. 557-578.

Cassese, A. 1998. ‘On the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, EJIL, 9, pp. 2-17.

de Waal, A., ‘Sudan and the International Criminal Courtp.  a guide to the controversy’, (14 July 2008), [Available at: httpsp. //www.opendemocracy.net/article/sudan-and-the-international-criminal-court-a-guide-to-the-controversy Accessed on 30/6/2017].

Des Forges, A., et al. 1999. ‘“Leave None to Tell the Story”: Genocide in Rwanda’, Human Rights Watch, p. 1-1188.

Doughty, K. C. 2017. ‘Language and International Criminal Justice in Africap.  Interpretation at the ICTR’, International Journal of Transitional Justice, 11, pp. 239-256.

Edmonds, P. and Johnston, A. 2016. ‘Empire, Humanitarianism and Violence in the Colonies’, Journal of Colonialism and Colonial History17(1), pp. 1-14.

Fanon, F. 1963. The Wretched of the Earth, New York

Field, K. C. and Perito, R. M. 2002-2003. ‘Creating a Force for Peace Operationsp.  Ensuring Stability with Justice’, Parameters, Winter Issue, pp. 77-87.

Firchow, P. and Mac Ginty, R. 2013. ‘Reparations and Peacebuildingp.  Issues and Controversies’, Human Rights Review, 14, pp. 231-239.

Fletcher, L. E., et al. 2009. ‘Context, Timing and the Dynamics of Transitional Justicep.  A Historical Perspective’, Human Rights Quarterly, 31, pp. 163-220.

Fujii, L. A. 2014. ‘Rescuers and Killer-Rescuers During the Rwanda Genocide’, in Semelin, J., Andrieu, C. and Gensburger, S., (eds), Resisting Genocidep.  The Multiple Forms of Rescue, Oxford.

Fukuyama, F. 1989. ‘The End of History?’, The National Interest, No. 16, p. 3-18.

Gegout, C. 2013. ‘The International Criminal Courtp.  limits, potential and conditions for the promotion of justice and peace’, Third World Quarterly, 34(5), 800-818.

Glasius, M. 2009. ‘What is Global Justice and Who Decides? Civil Society and Victim Response to the International Criminal Court’s First Investigations’, Human Rights Quarterly, 31(2), pp. 496-520.

Goda, N. J. W. 2006. ‘Review Article:  Law, Memory, and History in the Trials of Nazis’, The International History Review, 28(4), pp. 798-806.

Goetschel, L. and Hagmann, T. 2009. ‘Civilian peacebuilding:  peace by bureaucratic means?’, Conflict, Security and Development, 9(1), pp. 55-73.

Goldstone, R. J. 1996. ‘Justice as a Tool for Peace-Making:  Truth Commissions and International Criminal Tribunals’, New York University Journal of International Law and Politics, 28(3), pp. 485-503.

Human Rights Watch. 2010. ‘Darfur:  International Criminal Court’s Decision on Bashir Arrest Warrant’, (3 February 2010), [Available at:  https: //www.hrw.org/news/2010/02/03/darfur-international-criminal-courts-decision-bashir-arrest-warrant Accessed on 22/03/2017].

Human Rights Centre UC Berkeley School of Law. 2015. ‘The Victims’ Court?:  A Study of 622 Victim Participants at the International Criminal Court’, pp. 1-77, [Available at:  https://reliefweb.int/sites/reliefweb.int/files/resources/VP_report_2015_final_full2.pdf Accessed on:  02/08/2017].

ICC. ‘Understanding the International Criminal Court’, [Available at:  https: //www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf Accessed on 10/08/2017].

ICC. 1998. ‘Rome Statute of the International Criminal Court’, A/CONF.183/9, (17 July 1998),[Available at:  https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdfAccessed on 2/02/2017].

ICC. 2005. ‘ICC – Security Council refers situation in Darfur to ICC Prosecutor’, (1 April 2005), [Available at:  https: //www.icc-cpi.int/Pages/item.aspx?name=security%20council%20refers%20situation%20in%20darfur%20to%20icc%20prosecutor Accessed onp.  12/03/2017].

ICC. 2009. ‘Warrant of Arrest for Omar Hassan Ahmad Al Bashir’, (4 March 2009), [Available at:  https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-1 Accessed on 03/01/2017]. 

ICC. 2010. ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’, (12 July 2010), [Available at:  https: //www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-94 Accessed on 03/01/2017].

IRIN News. 2002. ‘How close is an African criminal court?’, (13 June 2002), [Available at:  http://www.irinnews.org/analysis/2012/06/13 Accessed on 7/07/2017]

ISS Peace and Security Council Report. 2017. ‘Beyond symbols:  can the AU really prevent genocide on the continent?’, (26 May 2017), [Available at:  https: //issafrica.org/pscreport/on-the-agenda/beyond-symbols-can-the-au-really-prevent-genocide-on-the-continent?utm_source=BenchmarkEmail&utm_campaign=PSC+Report&utm_medium=email Accessed on 14/03/2017]

Jackson, R. H. 1945. ‘Opening Statement Before the International Military Tribunal’, [Available at:  https: //www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/Accessed on 04/06/2017].

Kapteijns, L. 2013. ‘Test-firing the ‘new world order’ in Somalia: the US/UN military humanitarian intervention of 1992–1995’, Journal of Genocide Research, 15(4), pp. 421-442.

Karstedt, S., (2016), ‘The Emotion Dynamics of Transitional Justicep.  An Emotion Sharing Perspective’, Emotion Review, 8(1), pp. 50–55.

Kastner, P. 2007. ‘The ICC in Darfur – Savior or Spoiler?’, ILSA Journal of International & Comparative Law, 14(1), pp. 145-188.

Kennedy, D. 2009. ‘Selling the Distant Other:  Humanitarianism and Imagery—Ethical Dilemmas of Humanitarian Action’, The Journal of Humanitarian Assistance, [Available atp.  httpsp. //sites.tufts.edu/jha/archives/411Accessed on 02/08/2017].

Kersten, M. 2013. ‘The ICC and Regime Change: Some Thoughts but Mostly Questions’, Justice in Conflict Blog, (31 January 2013), [Available atp.   httpsp. //justiceinconflict.org/2013/01/31/the-icc-and-regime-change-some-thoughts-but-mostly-questions/ Accessed on 27/07/2017].

Kelsen, H. 1944. ‘The Principle of Sovereign Equality of States as a Basis for International Organisation’, The Yale Law Journal, 53(2), pp. 207-220.

Kiokio, B. 2003. ‘The right of intervention under the African Union’s Constitutive Act:  From non-interference to non-intervention’, International Review of the Red Cross, 85(852), pp. 807-825.

Klose, F. 2011. ‘The Colonial Testing Ground:  The International Committee of the Red Cross and the Violence End of Empire’, Humanity, 2(1), [Available at:  http: //humanityjournal.org/issue2-1/the-colonial-testing-ground-the-international-committee-of-the-red-cross-and-the-violent-end-of-empire/ Accessed on 02/08/2017].

Klose, F. and Geyer, D. 2013. Human Rights in the Shadow of Colonial Violence, Philadelphia:  University of Pennsylvania Press

Kohn, M. 2013. ‘Post-colonialism and global justice’, Journal of Global Ethics, 9(2), pp. 187-200.

Kuzmarov, J. 2013. ‘The Responsibility of Intellectuals Redux:  Humanitarian Intervention and the Liberal Embrace of War in the Age of Clinton, Bush and Obama’, The Asia-Pacific Journal, 11(24), pp. 1-38.

Lamony, S. 2015. ‘Putting Victims First:  The Aftermath of al-Bashir’s Visit to South Africa’, (27 July 2015), [Available at:  https: //justiceinconflict.org/2015/07/27/putting-victims-first-the-aftermath-of-al-bashirs-visit-to-south-africa/ Accessed on 08/08/2017].

Loeb et al., J. 2010. ‘Darfurian Voices:  Documenting Darfurian Refugees’ Views on Issues of Peace, Justice and Reconciliation’, [Available at:  http: //www.24hoursfordarfur.org/ Accessed on 27/07/2017].

Maathai, W. 2010. ‘Analysis – African Leaders Solving Own Problems’, (28 January 2010), [Available at:  http: //www.newsudanvision.com/international/2000-analysis-african-leaders-solving-own-problems Accessed on 30/07/2017].

Mac Ginty, R. 2008. ‘Indigenous Peace-Making Versus the Liberal Peace’, Cooperation and Conflict, 43 pp. 139-163.

Mac Ginty, R. and Richmond, O. 2013), ‘The Local Turn in Peace Buildingp.  a critical agenda for peace’, Third World Quarterly, Vol. 34(5), pp. 763-783.

Mamdani, M. 2008. ‘‘Darfur, ICC and the New Humanitarian Order:  How the ICC’s “responsibility to protect” is being turned into an assertion of neo-colonial domination’, Pambazuka News, (17 September 2008), [Available at:  httpsp. //www.pambazuka.org/governance/darfur-icc-and-new-humanitarian-order Accessed onp.  28/07/2017].

Mamdani, M. 2010. ‘Responsibility to Protect or Right to Punish?’, Journal of Intervention and Statebuilding, 4(1), pp. 53-67.

Marks. S. 1997. ‘The End of History? Reflections on Some International Legal Theses’, EJIL, 3, pp. 449-477.

Mbeki, T. M. 2009. ‘Darfur:  The quest for peace, justice and reconciliation. Report of the African Union High-Level Panel on Darfur’, International Journal of African Renaissance Studies – Multi, Inter- and Transdisciplinarity, 4(2), pp. 205-219.

Meernik, J. 1996. ‘United States Military Intervention and the Promotion of Democracy’, Journal of Peace Research, 33(4), pp. 391-402.

Miller, D. 2002. ‘Cosmopolitanism: A Critique’, Critical Review of International Social and Political Philosophy, 5(3), pp. 80-85.

Mills, K. 2012. ‘“Bashir is Dividing Us”p.  Africa and the International Criminal Court’, Human Rights Quarterly, 34(2), pp. 404-447.

Moffett, L. 2015. ‘Elaborating Justice for Victims at the International Criminal Court’, Journal of International Criminal Justice, 13, pp. 281-311.

Monbiot, G. 2005. ‘How Britain Denies its Holocausts’, (27 December 2005), [Available at:  httpp. //www.monbiot.com/2005/12/27/how-britain-denies-its-holocausts/ Accessed on 14/08/2017].

Paris, R., 2002. ‘International peacebuilding and the ‘mission civilisatrice’’, Review of International Studies, 28, pp. 637-656.

Pavlakis, D. 2016. British Humanitarianism and the Congo Reform Movement, 1896-1913. Routledge, 2016.

Peace and Security Council. 2009. ‘Report of the African Union High-Level Panel on Darfur (AUPD)’, PSC/AHG/2 (CCVII), (29 October 2009).

Peskin, V. 2009. ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’, Genocide Studies and Preventionp.  An International Journal4(3), pp. 304–328.

Rubli, S., (2012), ‘Transitional Justicep.  Justice by Bureaucratic Means?’, Swisspeace Working Paper, 4, pp. 1-25.

Sato, S. 2017. ‘‘Operation Legacy’p.  Britain’s Destruction and Concealment of Colonial Records Worldwide’, The Journal of Imperial and Commonwealth History, Online edition:  11 Apr 2017, pp. 1-23.

Souaré, I. K. 2008. ‘ISS Situation Reportp.  Sudanp. What Implications for President Al-Bashir’s Indictment by the ICC?’, Institute for Security Studies, (25 September 2008), [Available at:  https: //issafrica.org/acpst/publications/situation-reports/situation-report-sudan-what-implications-for-president-al-bashirandapos;s-indictment-by-the-icc-issaka-k.-souare Accessed on 30/07/2017].

Sooka, Y., (2006), ‘Dealing with the past and transitional justicep.  building peace through accountability’, International Review of the Red Cross, Vol. 88(862), pp. 311-325.

Sriram, C. L. 2007. ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice’, Global Society, Vol. 21(4), pp. 579-591.

Thakur, R. 2016. ‘Ethics, International Affairs and Western Double Standards’, Asia and the Pacific Policy Studies, Vol. 3(3), pp. 370–377.

The Economist. 2008. ‘A middle way for justice in Sudan’, (11 December 2008), [Available at:  httpp. //www.economist.com/node/12777952 Accessed on 08/08/2017].

Thomson, S. and Nagy, R. 2011. ‘Law and Power and Justice:  What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts’, The International Journal of Transitional Justice, 5(1), pp. 11-30.

Tietel, R., (2002), ‘Humanity’s Law:  Rule of Law for the New Global Politics’, Cornell International Law Journal, 35(2), pp. 355-387.

Tiemessen, A., (2014), ‘The International Criminal Court and the politics of prosecutions’, The International Journal of Human Rights18(4-5), pp. 444-461.

United Nations, ‘Rome Statute of the International Criminal Courtp.  Overview’, (1998-1999), [Available atp. httpp. //legal.un.org/icc/general/overview.htm Accessed on 04/07/2017].

United Nations SC, ‘Minutes, 5158th Meeting’, (31 March 2005), UN Doc S/PV.5158.

United Nations SC Resolution, S/RES/1593, (31 March 2005).

Vieille, S., (2012), ‘Transitional Justicep.  A Colonising Field?’, Amsterdam Law Forum, Vol 3(3), pp. 58-68.

Yablonka, H., (2012), ‘The Eichmann Trialp.  Was It the Jewish Nuremberg?’, Loyola of Los Angeles International and Comparative Law Review, 34 (Rev. 301), pp. 301-313.

Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court

By Zeinab Drabu

Zeinab Drabu is a recent graduate from the University of Leeds, where she achieved a First Class Honours in her BA degree in German and International Relations. Her academic and research interests include international politics, international law and international ethics.

The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.

Is the International Criminal Court exclusively targeting Africa? 

In view of the submission of withdrawal notices from the International Criminal Court by the African states of Burundi, Gambia and South Africa in October 2016, despite eventual revocations in the cases of the latter two, scholars such as Werle and Vormbaum (2014, p.181) contend that the ‘Afro-centric focus of the International Criminal Court has created a distorted perception within the African continent about the intentions underlying the establishment of the Court’. The Court was initially founded to prosecute the most serious crimes facing the international community, including ‘the crime of genocide, war crimes and crimes against humanity’ (ICC, 2011, p.3), following the entry into force of the Rome Statute on the 1st July 2002. Objectively it is evident that all cases pursued to date have been directed towards African nationals. Specifically, submissions have included ‘those by individual governments in the cases of Uganda, the Democratic Republic of the Congo [DRC] and the Central African Republic [CAR], self-initiated interventions by the ICC chief prosecutor, Louis Moreno Ocampo in Kenya and Côte d’Ivoire and two UN Security Council referrals in Sudan and Libya’ (Murithi, 2012, p.4). Taking such observations into account, frustrations concerning the Court’s disproportionate focus on Africa are empirically justifiable. However, the first three situations outlined were self-referrals and therefore investigated at the request of the respective states themselves. In addition, crimes committed in all cases fell under the jurisdiction of the International Criminal Court.

Currently there are 124 State Parties to the Rome Statute of the International Criminal Court, of which 34 are African. Hence, quantitatively, Africa constitutes the most heavily represented region in the International Criminal Court, which not only recognises its permanency and legitimacy, but also accepts and emulates its jurisdiction. In addition, the International Criminal Court benefits extensively from the expertise of African professionals, with numerous Africans occupying high-level positions in all its organs. This includes Ms. Fatou Bensouda of the Gambia, who was instated as the Chief Prosecutor of the Court in 2012. In light of these structural and demographic contributions, African recognition of the legitimacy and authority of the International Criminal Court as an institution is significant.

The contributions of African states during the establishment of the International Criminal Court are also imperative to consider when assessing the extent to which their frustrations with the Court’s allegedly selective approach are justified. Indeed, whilst numerous African states were present for the drafting of the Rome Statute, the founding treaty of the International Criminal Court at the Rome Conference in July 1998, the clear majority voted in favour of adopting the Rome Statute and establishing the International Criminal Court. Such extensive support suggests that the objectives and purpose of the Court at the time of its establishment aligned with the interests of the majority of African states. In addition, on the 2nd February 1999, Senegal ratified the Rome Statute of the International Criminal Court, becoming the first State Party to ratify the Statute (United Nations, 2014), encapsulating and reaffirming African support for the Court. Furthermore, it is important to note that current efforts by the International Criminal Court to expand its international outreach are actively being pursued in terms of its prosecution of mass atrocity crimes. As well as the recent initiation of a proprio motu investigation into crimes against humanity and war crimes committed in Georgia in 2008, a Report on Preliminary Examination Activities (2016, p.6) issued by the Chief Prosecutor outlines ‘preliminary examinations currently underway in a number of states across different continents including Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Ukraine’.

Nevertheless, dismissals to date by the International Criminal Court of cases outside Africa have triggered frustrations from African states that the ‘International Criminal Court is practicing a form of “selective justice” which purposely avoids the prosecution of diplomatically, economically, financially and politically strong countries’ (Mbaku, 2014, p.10). A key example highlighted by Dugard (2013, p.563) which illustrates this is the Prosecutor’s failure to investigate alleged war crimes committed by Israel and Hamas during Operation Cast Lead in 2008. Whilst Dugard (2013, pp.567-569) emphasises the Prosecutor’s weakness in confronting Israel and its allies such as the United States as a key causal factor in the case’s dismissal, what is most interesting to note is the Prosecutor’s decision to investigate crimes committed in Mali instead, where the evidence is less clear. Whilst this example bolsters the credibility of frustrations regarding the International Criminal Court’s active preference in prosecuting African cases, scholars such as Saltzman (2013, p.164) counter this contention. Saltzman contends that at the time of the offensive, although the Palestinian National Authority had recognised the International Criminal Court’s jurisdiction, it was not a party to the Rome Statute and therefore not under the Court’s jurisdiction. Thus, although the structural limitations of the Rome Statute can be universally applied to different cases in assessing whether African state frustrations are justified, this example highlights the necessity to equally explore case-specific political dynamics in conjunction with the subject matter of the case. It further illustrates an instance where structural limitations of the International Criminal Court have delegitimised rhetoric regarding the selective targeting of African states by the International Criminal Court.

The Paradox of state co-operation: an analysis of the case of Omar Al-Bashir

On the 4th March 2009, the International Criminal Court issued a warrant of arrest for President Omar Al-Bashir of Sudan on charges including genocide, crimes against humanity, and war crimes. As these are all crimes that fall within the jurisdiction of the Court in accordance with the Rome Statute, the case possesses legitimate prerequisites for investigation. As well as being the first case in which a sitting head of State has been issued with an arrest warrant, scholars such as Mills (2012, p.407) acknowledge that it is also the first in which a ‘case before the ICC has forced states to confront their multiple interests and responsibilities in light of global power dynamics’. This is due to the fact that African states are required to overcome the conflict between their legal obligations under the Rome Statute and their political commitments as member states of the African Union in determining their involvement and approach respective to the case of the indictment of Al-Bashir. 

Frustrations concerning the alleged ‘political abuse of universal jurisdiction against African officials by Western states’ (Van der Wilt, 2011, p.1044) appear to oppose the African Union’s policy asserting that ‘heads of state enjoy diplomatic immunity’ when confronted with arrest warrants (Akande and Shah, 2010, p.815).  The case of the South African government’s failure to arrest Al-Bashir during his visit to an African Union summit in Johannesburg in 2015 highlights the discrepancies between Article 27 and Article 98 (1) of the Rome Statute in relation to diplomatic immunity. It further demonstrates South Africa’s voluntary violations of its legal responsibilities as outlined by the Rome Statute in favour of complying with the African Union’s policy of non-cooperation, which provides support for the contention that African State frustrations towards the International Criminal Court’s jurisdiction are not justified. 

As illustrated by Article 27 of the Rome Statute, there is an ‘absolute prohibition on immunities for crimes falling within the jurisdiction of the ICC at the international level’ (Bekou and Shah, 2006, p.513). South Africa is also a State Party to the Rome Statute and therefore falls under the jurisdiction of the International Criminal Court. Hence some scholars argue that the removal of diplomatic immunity for perpetrators of mass atrocities is also mandatory at the national level. From this, it is evident that there is a comprehensive legal basis obligating the South African government to arrest Al-Bashir. Yet upon examination of Article 98 (1) of the Rome Statute, it can be argued that the removal of diplomatic immunity from a head of State such as Al-Bashir violates other key principles of international law, including territorial sovereignty and non-interference, producing a ‘scenario of forced regime change by one country on another’ in the words of South Africa’s Masutha (Feldman, 2016). Article 98 (1) states that

‘the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity’ (International Criminal Court, 2011, p.69).  

That said, according to scholars such as Van der Vyver (2015, p.574), ‘the obligation of non-party states to execute the arrest warrant of President Al Bashir should rest with Security Council, acting under its Chapter VII powers, which has instructed all states and non-party-states included’. From this perspective, it can be contended that the ultimate authority and legitimacy of State Parties legal obligations take precedence, delegitimising African state frustrations’ regarding the diplomatic immunity of Heads of State such as Al-Bashir.  

The obligations of non-state party co-operation within the Rome Statute further highlight weaknesses regarding African state frustrations concerning the jurisdiction of the International Criminal Court in its relationship with the United Nations Security Council. On one hand, contentions regarding the obligations of non-state parties, specifically in situations where they have been referred to by the United Nations Security Council to co-operate with the Court, have often been manipulated by African states, as in the case of Al-Bashir, to justify and legitimise such frustrations. Firstly, Bekou and Shah (2006, p.541) assert that as ‘Sudan is not a State Party to the Rome Statute, there is no obligation for the state to fulfil requests for cooperation from the Court’. However, due to the referral mechanism used in the case to the Prosecutor of the International Criminal Court through U.N. Security Council Resolution 1593 under Chapter VII of the U.N. Charter, scholars such as Schabas (2011, p.418) draw attention to Article 12 of the Rome Statute which ‘opens up the possibility for the Court to exercise jurisdiction if a matter is referred to it by the Security Council’. This obligates Sudan as a non-state party to cooperate with the Court by placing it under the same jurisdictional obligations as existing State Parties of the International Criminal Court. However, it can be contended that a closer examination of the duties entailed in the resolution reveal a degree of ambiguity. As stated in Paragraph 2 of the resolution, ‘Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (United Nations Security Council, 2005). Additionally, the resolution ‘urges all States and concerned regional and other international organizations to cooperate fully’ (United Nations Security Council, 2005). 

Taking this into account, it can be argued that the wording of the resolution merely encourages states to cooperate with the Court but does not necessarily compel them to do so. This exhibits weakness in the Court’s power of enforcement of state co-operation for the successful resolution of cases. However, when considering the votes in favour of the resolution by African states that were members of the Security Council at the time, it can be argued that the majority were supportive of the resolution. Both Benin and the United Republic of Tanzania voted in favour of the resolution, with Algeria abstaining. Although Algeria’s abstention stands contrary to African states’ support for the resolution, it appears principally politically driven, favouring alternative prosecution options to be determined by the African Union. In contrast, Benin refers to the ‘Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so’ (Mutton, 2015) in its defence of the International Criminal Court’s decision following the U.N. Security Council resolution vote. Benin’s stance not only highlights the legal obligation of African states’ to act in accordance with the U.N. Security Council in this case but also affirms African states’ collective recognition of the International Criminal Court’s jurisdiction over Sudan. 

At the time that the arrest warrant against Al-Bashir was issued in Sudan, African states requested for the arrest warrant against Al-Bashir to be deferred. According to scholars such as Oette (2010, p.348) this was due to concerns regarding the arrest warrant’s impact on the peace process being mediated by the African Union and on Sudan’s political stability in accordance with Article 16 of the Rome Statute. Yet the rejection of the deferral request by the United Nations Security Council triggered notable frustrations from African states, who turned to label the International Court as a ‘neo-colonial Court’ (Wegner, 2015, p.297) used as a tool to impose Western imperialism, as well as an institution that practices double standards regarding its relationship with the United Nations Security Council.  

Although examples such as the adoption of Security Council Resolution 1422 following Article 16 of the Rome Statute to grant immunity for U.S. soldiers in Bosnia and Herzegovina (Heyder, 2006, p.657) legitimate such frustrations, when examining the conflict between the pursuit of retributive justice in the attainment of peace in the Court’s prosecution of Al-Bashir juxtaposed with the structural limitations of the Court, such frustrations are not entirely justified. As Bensouda has pointed out, the ‘ICC is a judicial institution and cannot take into consideration the interests of peace’ (Buchanan, 2015). Thus, the United Nations Security Council’s decision to avoid accommodating political considerations in its decision to reject the deferral request is arguably valid in order to avoid the politicisation of justice, thereby safeguarding the legitimacy of the Court. However, as the case remains deadlocked at the Pre-Trial stage, although African State frustrations’ in general may have been unjustified, their implications on State cooperation appear to have had a profound, delegitimising effect on achieving progress within the case.

To conclude, over the course of this essay, the justification of various African states’ frustrations regarding the functionality and objectives of the International Criminal Court, in addition to frustrations that have arisen as a result of the Court’s interaction with international political organisations including the United Nations Security Council and the African Union, have been analysed. Whilst the first section does, to an extent, concur with frustrations concerning the International Criminal Court’s exclusive selection of cases within Africa, it also highlights the progress of the Court, which has begun to expand preliminary examinations and investigations into other continents. The second section of the essay focuses on the case of Omar Al-Bashir. Despite State Parties’ entailed obligations within the Rome Statute, this section illustrates that frustrations regarding sovereign immunity and universal jurisdiction are prevalent. This is due to African states’ conflicted and often politicised interpretations of these concepts, despite on the whole being juridically unjustified, which has provided impetus to a lack of State Party cooperation.

Bibliography

Akande, D and Shah, S. 2011. Immunities of State Officials, International Crimes, and Foreign Domestic Courts. The European Journal of International Law, 21(4), pp.815-852.

Al Jazeera. 2016. Gambia withdraws from International Criminal Court. [Online]. [Accessed 20th May 2017]. Available from: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.

Arbour, L. 2014.The Relationship Between the ICC and the UN Security Council. Global Governance: A Review of Multilateralism and International Organizations. 20(2), pp.195-201. 

Bekou, O. and Shah, S. 2006. Realising the Potential of the International Criminal Court: The African Experience. Human Rights Law Review, 6(3), pp.499-544.

Buchanan, R. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/

Dugard, J. 2013. “Palestine and the International Criminal Court: Institutional Failure or Bias?” Journal of International Criminal Justice. 11(3), pp. 563-570.

Feldman, N. 2016. International Criminal Court is too focused on Africa. [Online]. [Accessed 20th May 2017]. Available from: https://www.bloomberg.com/view/articles/2016-10-25/international-criminal-court-is-too-focused-on-africa.  

Heyder, C. 2006. The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status. Berkeley Journal of International Law, 24 (2), pp. 650-671.

Human Security Centre. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

International Criminal Court. 2011. Rome Statute of the International Criminal Court. [Online]. The Hague: International Criminal Court. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

International Criminal Court. 2016. Report on Preliminary Examination Activities 2016. [Online]. The Hague: International Criminal Court. [Accessed 14th May 2017].  Available from: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf

Mbaku, J. 2014. International Justice: The International Criminal Court and Africa. [Online]. [No Place]: The Brookings Institute. [Accessed 16th May 2016]. Available from: https://www.brookings.edu/wp-content/uploads/2016/07/03-foresight-international-criminal-court-africa-mbaku-1.pdf

Mills, K. 2012. “Bashir is Dividing Us”: Africa and the International Criminal Court. Human Rights Quarterly, 34(2), pp.404-447.

Murithi, T. 2012. Africa’s Relations with the ICC: A Need for Reorientation? In: Luckscheiter, J and Mass-Albert, K. eds. A Fractious Relationship: Africa and the International Criminal Court. [Online]. [No place]: Heinrich Böll Foundation Southern Africa 2012. , pp. 4-9. [Accessed 16th May 2016].  Available from: https://www.boell.de/sites/default/files/2012-08-Perspectives_Africa_1_12.pdf

Mutton, J. 2015. Africa and the ICC: Countering half-truths. [Online]. [Accessed 30th March 2018]. Available from: https://www.dailymaverick.co.za/opinionista/2015-07-13-africa-and-the-icc-countering-half-truths/#.Wr3_4ExuK8B

Oette, L. 2010. Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond. Journal of International Criminal Justice, 8(2), pp.345-364.

Saltzman, Z. 2013. Much Ado About Nothing: Non-Member State Status, Palestine and the International Criminal Court. Journal of International and Comparative Law, 3(2), pp.163-209.

Schabas, W. 2011. An Introduction to the International Criminal Court. 4th. Cambridge: Cambridge University Press.

United Nations Security Council. 2005. Resolution 1593 (2005): Adopted by the Security Council at its 5158th meeting, on 31 March 2005. [Online]. S/RES/1593. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf

United Nations. 2014. Senegal First State to Ratify Rome Statute of International Criminal Court. [Online]. [Accessed 18th May 2017]. Available from: http://www.un.org/press/en/1999/19990203.l2905.html

Van der Vyver. 2015. The Al Bashir debacle. African Human Rights Law Journal, 15(2), pp.559-579.

Van der Wilt, H. 2011. Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States. Journal of International Criminal Justice, 9(5), pp.1043-1066.

Wegner, P. 2015. The International Criminal Court in Ongoing Instrastate Conflicts: Navigating the Peace Justice Divide.[No place] : Cambridge University Press.

Werle, G. and Vormbaum, M. 2014. Africa and the International Criminal Court. 1st. The Hague: Asser Press.

Caveat Visitator: Alternatives to Rome Statute Obligations for the Arrest of ICC Indictees

Ben Taylor, The University of Queensland, Australia

Ben Taylor is in the final year of his BA/LLB from the University of Queensland. He has previously interned at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia.

The recent visit of Sudanese President Omar al-Bashir to South Africa, and the ensuing international controversy at the prospect of his arrest there, has once again drawn attention to two trends in the International Criminal Court’s (ICC) relationship with states. Firstly, African state parties to the Rome Statute are increasingly frustrated with the ICC’s interventions in Africa, and the obligation they have to arrest a visiting indictee[1] such as al-Bashir, and are threatening to abandon their Rome Statute obligations as a result. The second is that unless the state in which an indictee resides is willing to arrest them, the Court is reliant on third states to arrest indictees if and when they visit, resulting in a situation of ‘caveat vistator’ – (accused) visitors beware.

This article will explore the obligations which states may have to arrest visiting ICC indictees which originate outside of the Rome Statute. In particular it will consider three sources of obligation: UN Security Council (UNSC) Resolutions, the obligation to punish genocide, and the obligation aut dedere aut judicare in a number of multilateral conventions. Ultimately it will attempt to answer what obligations may continue to force states to arrest and surrender an indictee like al-Bashir, even if the state in question has left the Rome Statute. However, it is important to note that the obligations to cooperate and arrest indictees discussed in this article have a complicated relationship with the personal immunities which may be held by indictees, such as head of state immunity in the case of al-Bashir, and that this relationship is contested, and outside the scope of this article.[2]

Al-Bashir, South Africa and the African Union

When al-Bashir arrived in Johannesburg for an African Union (AU) summit in June, a South African civil rights group[3] was able to obtain a High Court interim order instructing the South African government to take all necessary steps to prevent him from leaving the country, while the court decided on whether the government must arrest him (SALC v Minister of Justice and Constitutional Development, order of 14 June 2015). The next day the High Court ordered the government to arrest Al Bashir, but it was revealed that he had nevertheless been allowed to leave the country (SALC v Minister of Justice and Constitutional Development [2015]). The government was denied leave to appeal (Minister of Justice and Constitutional Development v SALC [2015]) and is now petitioning the Supreme Court, where the matter will be heard on 12 February 2016 (Southern African Litigation Centre, accessed 20 December 2015). Meanwhile, the ruling African National Congress party has resolved to support withdrawing South Africa from the Rome Statute (Reuters 11 October 2015).[4]

Rome Statute state parties are obliged to execute requests from the Court to arrest and surrender persons who are the subject of arrest warrants (Rome Statute 1998, art 89).[5] If they do not, the Court is able to make findings of non-cooperation and refer them to the Assembly of States Parties or to the UNSC where such a referral initiated the case (Rome Statute 1998, art 87(7); Regulations of the Court 2012, reg 109). In al-Bashir’s case, the Pre-Trial Chamber has made numerous referrals[6] without any meaningful sanction or reprimand from those bodies.

Instead, the AU has consistently attempted to stall the process. When in 2008 the Prosecutor first sought an arrest warrant against al-Bashir, the first sitting head of state to be indicted by the ICC,[7] the AU responded by calling on the UNSC to defer the process (AU Peace and Security Council 2008, para 11(i); endorsed in AU Assembly2009a, para 3). When the UNSC declined to do so (res. 1828, 2008, preamble), the AU went a step further, producing a Resolution reiterating its request and stating that AU Member States shall not cooperate with his arrest and surrender (AU Assembly 2009b, paras 9, 10).[8] Most recently, the AU has adopted a Kenyan proposal to ‘develop a roadmap’ for African nations to withdraw from the Court en masse (The Guardian 2 February 2016).

If African states do proceed to withdraw, the withdrawal process provided in the Statute does not discharge obligations which arose while they were parties, in particular ‘criminal investigations and proceedings in relation to which the State had a duty to cooperate’ which commenced before they withdrew (Rome Statute 1998, art 127(2). Nonetheless it is unclear whether the Court would be able to refer a state to the Assembly of State Parties or UNSC while no longer a party. And, more practically, governments may be unperturbed by the admonitions of an institution of which they are no longer a member.[9]

But what alternative obligations exist, and do they present the chance of meaningful enforcement, particularly at the International Court of Justice? In answering that question, this article will not be primarily concerned with the obligations of the state of nationality of the accused, or the state on whose territory alleged offences were committed, but with the situation of third states faced with the presence of an accused on their territory – whether staying permanently, such as Hissène Habré was in Senegal, or temporarily, as with al-Bashir’s visit to South Africa.

Security Council Obligations

The case against al-Bashir derives jurisdiction from UNSC Resolution 1593, which referred Sudan to the ICC in 2005, using the referral power in article 13(b) of the Rome Statute. Such UNSC Resolutions, acting under Chapter VII of the UN Charter, have the power to create binding obligations for any UN member state, and as Charter obligations they prevail over any other treaty obligation (Charter of the United Nations art 103; Libya v United Kingdom, Order of 14 April 1992, para 42). This means that the obligations UNSC Resolutions do create would defeat any Resolutions of the AU designed to discourage cooperation with the ICC, as was articulated by the ICC Pre-Trial Chamber when it admonished the Democratic Republic of the Congo for allowing al-Bashir to visit for a COMESA (Common Market for Eastern and Southern Africa) meeting, relying on the immunity afforded to AU heads of state (Al Bashir, Decision of 9 April 2014). The Chamber held that the UNSC, by resolving that Sudan shallcooperate with the Court, had in effect forced Sudan to relinquish head of state immunity, and that because it was a UNSC Resolution, it prevailed over any obligations created by the AU (Al Bashir, Decision of 9 April 2014, paras 25-31). The conclusion with regard to head of state immunity, and the relationship between obligations to cooperate and personal immunities is contested, are outside the scope of this article.[10]

However, in each of the UNSC referrals thus far (Sudan and Libya), binding obligations to cooperate with the ICC have only been imposed on those states referred. Both Resolutions decide that Sudan and Libya shall cooperate fully with ICC and the Prosecutor, but only urge other states to cooperate (SC res. 1593 2005, para 2; res. 19702011, para 5), which the Pre-Trial Chamber has acknowledged does not oblige them (Al Bashir, Decision of 10 October 2013, para 10). By contrast, the UNSC Resolutions creating the International Criminal Tribunals for Rwanda and the former Yugoslavia imposed cooperation obligations on all states (SC res. 827 1994, para 4; res. 955 1994, para 2). The Pre-Trial Chamber recognised this option was open to the UNSC, observing that it

may, by means of a resolution adopted under Chapter VII of the UN Charter, create an obligation to cooperate with the Court on those UN Member States which are not parties to the [Rome] Statute. In such a case, the obligation to cooperate stems directly from the UN Charter (Al Bashir, Decision of 10 October 2013, para 7).

It is worth noting that this potential is not limited to UNSC Resolutions which refer cases to the Court: the Council has previously instructed the UN Mission in the Democratic Republic of Congo (MONUSCO) to cooperate with the ICC (res. 2211 2015, para 9(d)), it could similarly decide that relevant states shall also cooperate. Indeed, the Office of the Prosecutor has noted (rather optimistically) that the Council could ‘specify particular measures to enable the Prosecutor to avoid strict requirements for state co-operation and to act with more authority to investigate a situation’ (2003, para 93).

Consequently, while the UNSC undoubtedly has the power to impose general obligations of cooperation on all states with respect to ICC referrals (or with respect to other ICC cases), the actual Resolutions which so far have referred situations to the Court have not done so, instead creating obligations only for the referred states.

Punishing Genocide

The Genocide Convention creates an obligation to punish genocide, and to cooperate with an ‘international penal tribunal’ but it is limited in scope (1948, art 6).[11] The International Court of Justice explained that the obligation is first to try before a state’s own courts persons accused of genocide which was committed on their territory, and secondly to cooperate with an ‘international penal tribunal’ if the state has accepted its jurisdiction (Bosnia v Serbia [2007], paras 184, 442-443). Unlike the obligation to extradite or prosecute (discussed below), it does not oblige states to confer or exercise jurisdiction over crimes not committed on their territory, nor to extradite persons on their territory for crimes committed elsewhere (Bosnia v Serbia [2007], para 447).

The limitations of this provision were made clear in the Bosnia v Serbia case, where Serbia was not held responsible for failing to punish persons accused of having committed the Srebrenica genocide because it did not occur on Serbian territory ([2007], para 442), but was held responsible for having failed in its obligation to cooperate with the Tribunal (an ‘international penal tribunal’, of which the parties to the Dayton Agreement had accepted the jurisdiction) by failing to arrest persons in their territory accused of genocide and hand them over to the tribunal ([2007], paras 443-449, 471). In particular, it found that failing to transfer Ratko Mladić meant it had breached this obligation ([2007], paras 448-449, 471).

Enforcement potential

To enforce this obligation at the International Court of Justice (described in more detail below), the Court’s jurisdiction may be founded on a compromissory clause. The Genocide Convention contains such a clause, which simply provides that disputes shall be submitted to the Court at the request of a party, without requirement for arbitration or specified time periods (1948, art 9). Because it obliges states to surrender genocidaires on their territory to the ICC if they have accepted its jurisdiction, the Convention firstly provides an alternative way of enforcing against states which are Rome Statute members. But further, it might seem to preclude enforcement against non-members. However, the International Court of Justice has clearly interpreted acceptance of jurisdiction as including the notion of being obliged to accept the jurisdiction of the tribunal, via UNSC Resolution ‘or some other rule of international law’ (Bosnia v Serbia [2007], para 446).[12] This interpretation suggests two potential avenues by which a non-Rome Statute party may be regarded as having accepted the ICC’s jurisdiction. The first is through a UNSC Resolution obliging states to cooperate with the court, as discussed above. The relevance of the Genocide Convention obligation in addition to the UNSC obligation discussed above would be the potential to seek enforcement at the International Court of Justice.

The second avenue is through the withdrawal process in article 127(2) of the Rome Statute. As noted above, states which withdraw from the Statute retain obligations in respect of ongoing cases. This could mean that a state which leaves the Rome Statute continues to be regarded as having accepted the Court’s jurisdiction for the purpose of cases which had commenced before their leaving. In short, for the purpose of the Genocide Convention, a state which leaves the Rome Statute may still be obligated to surrender alleged genocidaires such as al-Bashir. However, this interpretation would need to be tested. [13]

Thus in al-Bashir’s case (presently the only genocide indictee at the ICC), Sudan is the only state with the primary obligation to punish, and other states are obliged to surrender him if they have accepted the jurisdiction of the ICC. For the African states considering withdrawal from the Rome Statute, it is possible that they will continue to be under an enforceable obligation to surrender him, if another Genocide convention party is willing to test the case at the International Court of Justice.

Aut Dedere Aut Judicare

The aut dedere aut judicare principle can be traced to Hugo Grotius: ‘[w]hen appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’ (trans. Kelsey 1925, pp. 527). Now known as aut dedere aut judicare,[14] the obligation to extradite or prosecute appears in different forms in many different treaties. Its potential gained prominence after Belgium successfully sought its enforcement against Senegal at the International Court of Justice over the former President of Chad, Hissène Habré (Belgium v Senegal [2012]). The other relevant recent development was the conclusion of the International Law Commission’s work on the principle during its 66th session in 2014. The first of these cemented the possibility of enforcement of the obligation at the ICJ, while the second cemented its relationship and relevance to the ICC, both discussed below.

The International Law Commission attempted a categorisation of different forms of the obligation,[15] and concluded that attempting to harmonise the disparate treaty sources would be futile (2014, para 12). There is thus presently no single customary principle of aut dedere aut judicare concerning international crimes. But the individual treaties which overlap with Rome Statute crimes nonetheless provide independent sources of the obligation.

The Relevant Conventional Obligations:

Four conventional sources of the obligation aut dedere aut judicare overlap with the ratione materiae jurisdiction of the ICC: article 7(1) of the Torture Convention (1984)[16] and article 8(1) of the Hostages Convention (1979)[17]each provide an obligation to prosecute or extradite; article 11(1) of the Enforced Disappearances Convention (2006)[18] provides an obligation to prosecute, extradite or surrender to an international criminal tribunal whose jurisdiction the state has recognised; and each of the four Geneva Conventions of 1949 and the Additional Protocol I of 1977 oblige states to search for and prosecute grave breaches of those conventions or hand over the person in question to another High Contracting party which has established a prima facie case.[19]

Immediately apparent is that these obligations do not primarily concern cooperation with ICC arrest warrants: only the Convention against Enforced Disappearances obligation mentions a tribunal which the state has accepted the jurisdiction of (see the discussion above concerning this restriction in the Genocide Convention), while the Geneva Conventions specifically refer to handing over to ‘another High Contracting party.’ To complicate further, the Rome Statute itself distinguishes between the terminology of extradition to a state, and surrender to the Court (1998, art 102). Schabas explains that this is consistent with the ad hoc tribunals’ use of ‘surrender or transfer’, and that it is in response to “objections from States that have legislation, and sometimes even constitutional provisions, prohibiting the extradition of their own nationals.” (2011, p. 279) Similarly during the negotiation of the Geneva Conventions, the language of ‘handing over’ was preferred to ‘extradition’ in view of the variety of extradition laws and treaties in place, in contrast to the customary practice in connection with the United Nations War Crimes Commission (International Law Commission 2010, para 54).

Nevertheless, the International Law Commission takes the position that ‘the obligation to extradite or prosecute may be satisfied by surrendering the alleged offender to a competent international criminal tribunal’ (2014, para 34), describing this as a ‘third alternative’ (2014, para 27). The ‘third alternative’ notion draws support from the Draft Code of Crimes Against the Peace and Security of Mankind (1996, art 9),[20] the Council of Europe position that the principle ‘may be interpreted lato sensu to include the duty of the state to transfer the person to the jurisdiction of an international organ, such as the [ICC]’ (2006, p. 119), and the view of Judge Xue, that surrender to an international tribunal would not be contrary to the obligation because ‘such a tribunal is created precisely to fulfil the object and purpose of the Convention’ (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42).[21]

The key to this interpretation is the understanding that extradition or handing over are not the primary obligation, but options to relieve the primary obligation to prosecute. As the International Court of Justice explained, in the context of the Convention against Torture, ‘extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’ (Belgium v Senegal [2012], para 95). Similarly surrender to an international court, unless inconsistent with the object and purpose of the relevant conventions (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42), is an optional alternative to domestic prosecution.

The reason this option matters is that, by comparison to the Genocide Convention, the obligation to prosecute is irrespective of the nationality of the accused or the territory where the alleged crimes occurred. All that’s relevant is the accused person is present on the state party’s territory. If states want to avoid obligations to surrender to the ICC (or extradition to another state), they must prosecute.

Scope of the Offences 

However, the scope of these offences, and the nature of their overlap with Rome Statute crimes, is not quite as simple as it first appears. Torture, enforced disappearance, hostage taking and grave breaches of the Geneva Conventions are not recognised as distinct crimes in the Rome Statute, but rather fall into the constitutive elements of the main offences: war crimes, crimes against humanity, and genocide (leaving aside aggression). In some cases the convention definitions of the offences are more limited than the Rome Statute elements, particularly with regard to non-state perpetrators.

Torture may amount to a war crime (Rome Statute 1998, art 8(2)(a)(ii), art 8(2)(c)(i))[22] or crime against humanity (Rome Statute 1998, art 7(1)(f)),[23] and may be one of the constitutive acts of genocide, if coupled with the relevant special intent (Elements of the Crimes 2002, art 6(b) Element 1, fn 3). However, the convention definition of torture requires the relevant harm to be inflicted for the purpose of obtaining information, confession, or coercion and with the consent or acquiescence of a public official or person in an official capacity (Torture Convention 1984, art 1), whereas the Rome Statute definition only requires the infliction of the harm on a person under the accused’s custody or control (1998, art 81(2)(e)). The meaning of ‘public official’ has been interpreted by the Committee against Torture to include a quasi-government group exercising de facto government authority where there is no official government (Elmi v Australia [1998], para 6.5), but not where a functioning government is present (H.M.H.I. v Australia [2001], para 6.4).

Enforced disappearance may amount to a crime against humanity (Rome Statute 1998, art 7(1)(i)).[24] The convention defines enforced disappearance as perpetrated by agents of the state, or persons acting with the authorisation, support or acquiescence of the state (Enforced Disappearance Convention 2006, art 2)[25] whereas the Rome Statue definition requires perpetration by, or with the authorization, support of acquiescence of, a state or political organization (1998, art 7(2)(i)).

Grave breaches correspond to a category of Rome Statute war crimes (1998, art 8(2)(b)), but one which is expressly limited to situations of international armed conflict (1998, art 8(2)(b); Cassese 2008, pp. 87-88, 89). In respect of both the conventions and the Rome Statute, grave breaches cannot be committed, and the obligation to extradite or prosecute cannot be engaged, in purely internal armed conflict.

Finally, hostage taking may be charged as a war crime (Rome Statute 1998, art 8(2)(a)(viii) & art 8(2)(c)(iii)). However, the scope of the Hostages Convention is limited by article 12 to situations in respect of which the Geneva Conventions do not create a ‘prosecute or extradite’ obligation (1979). As the Geneva Convention obligations are limited to international armed conflict (see above), the application of the Hostages Convention obligation is effectively limited to non-international armed conflict (Dinstein 2014, p. 170; Rosenstock 1980, p. 184; R v Zardad (Faryadi) [2004], paras 2, 10, 15). In this respect it plays something of a ‘gap filling’ role to the Geneva Conventions (Tuck 2015, pp. 313-314).

Further, the Hostages Convention does not apply to acts of hostage taking committed by and against nationals of the same state, within that state, where the offender is found in the territory of that state (1979, art 13). It will thus only become relevant to a person accused of committing an offence where there is some international aspect, or they leave the state to another which is a party to the convention. Thus, for a state which finds a person on their territory who is alleged to have committed an offence elsewhere, the obligation to prosecute or extradite applies in the same manner as the other conventions.

This variety of caveats and qualifications can create the impression of a loose patchwork of obligations. But these diverse offences are crucial because, simply put, it only takes one relevant offence among many in a warrant or indictment to trigger the obligation to prosecute or extradite that person. For example, in Belgium v Senegal, although the Court was only concerned with obligations relating to torture as defined in the Convention, the initial extradition request stemmed from an international arrest warrant issued by a Belgian investigating judge which included, as well as torture, serious violations of international humanitarian law, genocide, crimes against humanity and war crimes ([2012], para 21). Because the practice of ICC indictments thus far has been to allege a multiplicity of charges and engage in cumulative and alternative charging,[26] it is foreseeable that most indictments will touch upon one of the relevant convention offences discussed.

Enforcement

Necessary for a state to seek enforcement before the International Court of Justice against a state hosting an indictee is both jurisdiction and standing. The Court’s jurisdiction is derived from the consent of states, meaning it can be invoked through compromissory clauses, or declarations assuming the compulsory jurisdiction of the court (Statute of the International Court of Justice, art 36). Such compromissory clauses appear in the Convention against Torture (1984, art 30(1)), the Convention against Enforced Disappearances (2006, art 42(1))[27] and the Convention against Hostage taking (1979, art 16(1)), in near identical terms (note that each allows states to opt out by declaration). They provide that any dispute which cannot be settled by negotiation shall be submitted to arbitration, and if this is not possible within six months of the request for arbitration, the dispute may be referred to the Court.

The Geneva Conventions by contrast do not contain any compromissory clause, and thus any action at the International Court of Justice based on their obligations would require reciprocal declarations of acceptance of jurisdiction.[28] Suffice it to say that state parties to those conventions with compromissory clauses may bring disputes between one another before the ICJ, provided neither party has declared themselves not bound by the compromissory clause.

Belgium v Senegal provided the key to potential enforcement by upholding the erga omnes character of aut dedere aut judicare obligations. It is critical because any party to the treaties can seek enforcement against another state party hosting an indictee, whereas on a stricter interpretation of standing only a state with valid jurisdiction over the crime, which had previous requested extradition and been refused, could seek enforcement.[29] The Court in Belgium v Senegal affirmed that obligations owed erga omes partes create a legal interest for every state party to seek enforcement against any other ([2012], paras 68-70).[30] The Court held, looking to the object and purpose of the Convention against Torture, that in common with the Genocide Convention, states parties share a common interest in ending the relevant crimes ([2012], paras 68-70).[31] The preambles to the Enforced Disappearances Convention (2006) and Hostages Convention (1979) reveal similar statements of object and purpose.[32]

As noted above, enforcement of the Geneva Conventions at the Intertantional Criminal Court is difficult because of the lack of compromissory clause. However, if states have made a declaration of acceptance of jurisdiction, there is at least one international decision indicating that international humanitarian law generally creates obligations erga omnes, and the relevant treaties (in this case the Geneva Conventions) create erga omnes contractanes (erga omnes partes), as opposed to synallgmatic (reciprocity based) obligations (Kupreškić et al. Decision of 17 February 1999).[33]

Therefore, generally state parties can enforce against other state parties the above conventions if an indictee visits their territory. In the case of al-Bashir’s visit to South Africa, his first arrest warrant includes the charge of torture as a crime against humanity (Al Bashir, Warrant of Arrest [2009]), and South Africa is a signatory to the Convention against Torture (and has made no reservation to article 7). Any other state party to the Convention against Torture could thus seek enforcement of the obligation against South Africa, even if it chooses to leave the Rome Statute.

Both the Hostages Convention and Convention against Torture boast large proportions of the international community as state parties (174 and 158 states respectively, at time of writing), whereas the Convention against Enforced Disappearances is comparatively less well ratified (51 states at time of writing).

Finally, a more comprehensive approach could appear in a future convention on Crimes against Humanity. The Special Rapporteur on Crimes Against Humanity, Mr. Sean Murphy, has indicated that a second report on the topic planned for 2016 would cover, inter alia, obligations to criminalise, extend national jurisdiction and extradite or prosecute (International Law Commission 2015b, para 179).[34] Currently the International Law Commission has provisionally adopted the first four articles of a draft convention and commentaries to them (2015a, para 113-114).[35] The articles thus far define crimes against humanity in a manner closely following the Rome Statute, and provide obligations to prevent and punish (International Law Commission 2015a, para 116). However, the Special Rapporteur’s proposed timeline anticipates a first reading of the complete draft articles by 2018, and a second reading by 2020 (International Law Commission 2015b, para 182), meaning the entry into force of binding conventional obligations concerning crimes against humanity in general is still on the far horizon.

Enforcement in National Courts

The focus of this article has been on state obligations in international law, and their enforcement in the international arena. But the case of the Pretoria High Court ordering al-Bashir’s arrest is a reminder that national courts and investigative organs have a significant role to play in enforcing these obligations, even where the political will may be lacking at the government level. The audacity of a civil society group seeking the arrest of a sitting head of state, and very nearly achieving it through court order, calls to mind the Pinochet case, where Scotland Yard executed a Spanish arrest warrant over the former Chilean dictator while visiting the UK, despite his close ties to the former Thatcher government. Although Pinochet was ultimately allowed to return to Chile for health concerns, the House of Lords made a striking blow against head of state immunity for torture. (R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998); R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456; annulled by R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827)

The reasoning of the Pretoria High Court equally makes for a striking statement of the power of courts against executives. After setting out the reasons for making the arrest order of 15 June 2015, the Court discusses the ramifications of the fact that al-Bashir was allowed to leave the country despite the interim order. After reminding the Respondents – 12 organs of government including Ministers and Directors General – of the supremacy of the constitution and the rule of law (SALC v Minister of Justice and Constitutional Development [2015], para 37.1), the Court makes this rebuke:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law, if the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues. ([2015], para 37.2)[36]

This case illustrates that the importance of the role of national actors, be they domestic courts, independent prosecutors or civil society should not be underestimated.

Conclusion

So, Caveat Vistator: but indicted visitors must beware not just Rome Statute membership where they visit, but parties to the Conventions against Torture, Enforced Disappearances and Hostage taking, to the Geneva Conventions and Additional Protocol I, former members of the Rome Statute who remain members of the Genocide Convention, and any state the Security Council decides shall cooperate with the ICC. In all of these cases there are existing obligations which have sufficient clarity to say that they bind states, and present a good chance of enforcement.

It is true that none of these are as clear or uncomplicated as would be ideal. Utopians can hope for stronger UNSC Resolutions, such as in the manner envisaged by the Office of the Prosecutor in its informal expert paper (2003, para 93), further development of the extradite or prosecute obligation towards the position articulated in Article 9 of the Draft Code of Crimes Against the Peace and Security of Mankind (1996), and a Convention against Crimes against Humanity earlier than 2025. Further, this article has not fully dealt with all of the complexities of this broad area – outside the scope of this piece have been the current position of head of state immunity, the interaction between enforcement at the International Court of Justice and the Rome Statute provisions for settlement of disputes (1998, art 119) questions of complementarity (such as if a non-state party chooses to prosecute an ICC indictee), and the relevance, if any, of regional schemes for extradition[37] – each of these are topics for another day.

17th and 18th Century piracy’s gift to international law was the concept of hostes humani generis – the perpetrators of certain crimes, as the common enemies of mankind, were to find no safe haven without jurisdiction to punish them (Cassese 2008, p. 28). The experience of al-Bashir demonstrates a more modest reality: that modern international criminals face a gradually tightening ‘web’ of states where visiting risks arrest and surrender, thus far generally considered to consist of state parties to the Rome Statute. But the purpose of this article has been to show that this web is, at least at law, far wider. This realisation is critical for those advancing the universalisation of international criminal law, and the arrest of indictees like Omar al-Bashir.

References cited

Treaties

Charter of the United Nations.

Statute of the International Court of Justice.

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3(Part.II-B) (adopted 9 September 2002).

International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3(Part.II-A) (adopted 9 September 2002).

International Criminal Court, Regulations of the Court, Doc No ICC-BD/01-03-11 (adopted 29 June 2012).

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010).

International Convention Against the Taking of Hostages, 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983).

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).

Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978).

Security Council Resolutions

Security Council resolution 827, UN Doc S/RES/827 (25 May 1993).

Security Council resolution 955, UN Doc S/RES/955 (8 November 1994).

Security Council resolution 1593, UN Doc S/RES/1593 (31 March 2005).

Security Council resolution 1828, UN Doc S/RES/1828 (31 July 2008).

Security Council resolution 1970, UN Doc S/RES/1970 (26 February 2011).

Secuirty Council resolution 2211, UN Doc S/RES/2211 (26 March 2015).

International Court of Justice Cases

Questions Relating to the Oligation to Prosecute or Extradite (Belgium v Senegal) (Judgement) [2012] ICJ Rep 422.

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43.

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Order of 14 April 1992) [1992] ICJ Reports 114.

Case Concerning Barcelona Traction, Light, and Power Company, Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Reports 3.

International Criminal Court Cases

Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-1, 4 March 2009).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-109, 27 August 2010).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-129, 12 May 2011).

Prosecutor v Al Bashir (Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-139, 12 December 2011).

Prosecutor v Al Bashir (Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-140-tENG, 13 December 2011).

Prosecutor v Al Bashir (Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09-151, 26 March 2013).

Prosecutor v Al Bashir (Decison regarding Omar Al Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-164, 10 October 2013).

Prosecutor v Al Bashir (Decison on the Cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s arrest and surrender to the Court) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-195, 9 April 2014).

Prosecutor v Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/05-01/08-424, 15 June 2009).

International Criminal Tribunal for the former Yugoslavia Cases

Prosecutor v Milošević (Indictment) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-99-37, 22 May 1999).

Prosecutor v Kupreškić et al. (Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 17 February 1999).

Prosecutor v Kupreškić et al. (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 14 January 2000).

Prosecutor v Furundžija (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-17/1, 10 December 1998).

Special Court for Sierra Leone Cases

Prosecutor v Taylor (Indictment) (Special Court for Sierra Leone, Case No SCSL-03-01-I, 7 March 2003).

Communications of the Committee against Torture

Committee against Torture, Decision: Communication No. 120/1998, UN Doc CAT/C/22/D/120/1998 (‘Elmi v Australia’).

Committee against Torture, Decision: Communication No.117/2001, UN Doc CAT/C/28/D/177/2001 (‘H.M.H.I. v Australia’).

United Kingdom Cases

R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827.

R v Zardad (Faryadi), Ruling on the Taking of Hostages Act 1982 (Unreported, Central Criminal Court, Treacy J) 5 October 2004. Available from: <www.redress.org/downloads/news/zardad%205%20oct%202004.pdf>. [10 January 2016]

South African Cases

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development (Unreported, High Court, Fabricius J) 14 June 2015 (‘Interim Order’).

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development [2015] ZAGPPHC 204 (24 June 2015) (High Court).

Minister of Justice and Consitutional Development v Southern Africa Litigation Centre [2015] ZAGPPHC 675 (16 September 2015) (High Court).

International Documents

International Law Commission, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare)” Study by the Secretariat, UN Doc A/CN.4/630 (2010).

International Law Commission, Chapter VI: The obligation to extradite or prosecute (aut dedere aut judicare), in Report of the International Law Commission, UN Doc A/69/10 (2014).

International Law Commission, Chapter VII: Crimes against humanity, in Report of the International Law Commission, UN Doc A/70/10 (2015a).

International Law Commission, First report on crimes against humanity By Sean D. Murphy, Special Rapporteur, UN Doc A/CN.4/680 (2015b).

‘Draft Code of Crimes Against the Peace and Security of Mankind’ [1996] II(2) Yearbook of the International Law Commission 17.

Council of Europe, Extradition, European Standards: Explanatory notes on the Council of Europe convention and protocol and minimum standards protecting persons subject to transnational criminal proceedings (Council of Europe Publishing, Strasbourg, 2006).

Office ot the Prosecutor, Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation (2003).

Multilateral Treaties Deposited with the Secretary-General, United Nations, New York (ST/LEG/SER.E) Available from: <https://treaties.un.org/Pages/ParticipationStatus.aspx>. [20 December 2015].

African Union Documents

African Union Peace and Security Council, Communique of the 142nd Meeting of the Peace and Security Council (PSC/MIN/Comm (CXLII)), 21 July 2008.

African Union Peace and Security Council, Communique of the 175th Meeting of the Peace and Security Council(PSC/PR/Comm (CLXXV)), 5 March 2009.

African Union Assembly, Decision on the Application by the International Criminal Court Prosecutor for the Indictment of the President of Sudan (Assembly/AU/Dec.221 (XII)), 3 February 2009a.

African Union Assembly, Decision on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec. 245(XIII) Rev. 1), 3 July 2009b.

African Union Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/ AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec.296(XV)), 27 July 2010.

Books and Journal Articles

Akande, D. 2009, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities’, Journal of International Criminal Justice, vol 7, p. 333.

Cassese, A. 2008, International Criminal Law, 2nd ed, Oxford University Press.

Dinstein, Y. 2014, Non-International Armed Conflicts in International Law, Cambridge University Press.

Gaeta, P. 2009, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, Journal of International Criminal Justice, vol 7, p. 315.

Grotius, H 1925, De Jure Belli ac Pacis, trans. F. Kelsey, Clarendon Press.

Rosenstock, R. 1980, ‘The International Convention against the Taking of Hostages: Another International Community Step against Terrorism’, Denver Journal of International Law and Policy, vol. 9, p. 169.

Tuck, D. 2015, ‘Taking of Hostages’ in The 1949 Geneva Conventions: A Commentary, eds A. Clapham, P. Gaeta, M. Sassòli, Oxford University Press.

Schabas, W. 2011, An Introduction to the International Criminal Court, 4th ed, Cambridge University Press.

War Crimes Research Office, International Criminal Court Legal Analysis and Education Project 2010, The Practice of Cumulative Charging at the International Criminal Court, American University Washington College of Law.

News Reports

Immanuel, S. 2015, ‘Namibia: Cabinet Affirms ICC Withdrawal’, AllAfrica 24 November. Available from: <http://allafrica.com/stories/201511240340.html&gt;. [10 December 2015].

Reuters, 2015, ‘South Africa plans to leave International Criminal Court’, 11 October. Available from: <http://www.reuters.com/article/us-safrica-icc-idUSKCN0S50HM20151011&gt;. [20 December 2015].

Southern African Litigation Centre, ‘South Africa/Sudan: Seeking Implementation of ICC Arrest Warrant for President Bashir’. Available from: <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt;. [20 December 2015].

The Guardian, 2016, ‘African Union members back Kenyan plan to leave ICC’, 2 February. Available from: <http://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court&gt;. [2 February 2016].

Notes

[1]       The Rome Statute itself does not make use of the terms indictment or indictee, instead referring to ‘persons subject to a warrant of arrest’. See, e.g. Rome Statute 1998, art 60(1). Indictee is used here for ease of reference.

[2]        See Gaeta 2009; contra Akande 2009 and Al Bashir, Decision of 9 April 2014.

[3]       The Southern African Litigation Centre (‘SALC’), accessed at <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt; on 20 December 2015.

[4]       Similarly, on the 23rd of November it was announced that the Namibian cabinet had approved a recommendation for that country to leave the Rome Statute: (Immanuel, 2015).

[5]       There is both a general obligation to cooperate with the Court in Article 86, and specific obligations to cooperate with requests from the Court in Article 87, of which a request for arrest and surrender provided for in Article 89 is a species.

[6]       See Al Bashir, Decision of 9 April 2014, and previously, Decision of 27 August 2010; Decision of 12 May 2011; Decision of 12 December 2011; Decision of 13 December 2011; Decision of 10 October 2013; and Decision of 26 March 2013.

[7]       Often referred to as the first sitting head of state to be indicted by any international criminal tribunal, however the initial indictment of Slobodan Milošević at the ICTY for crimes in Kosovo came in May 1999, while he was still president of Serbia. His indictment was later amended to include crimes in Croatia and Bosnia and Herzegovina after his fall from power and arrest in Serbia. See Milošević, Indictment [1999]. Similarly Charles Taylor was indicted by the SCSL while he was still President of Liberia. See Taylor, Indictment [2003].

[8]       Note that Chad entered a reservation to the relevant non-cooperation paragraph. The position of non-cooperation was repeated in July of the following year: AU Assembly 2010, para 5.

[9]       As the Pre-Trial Chamber has recognised, one imagines wistfully, “the Court has no enforcement mechanism and thus relies on States’ cooperation, without which it cannot fulfil its mandate and contribute to ending impunity.” Al Bashir, Decision of 10 October 2013, para 8.

[10]        See Gaeta 2009; contra Akande 2009.

[11]       “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

[12]       Bosnia v Serbia, para 446: “The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case.” The Court goes on to find that the FRY was under an obligation to co-operate with the ICTY first from the coming into force of the Dayton Accords, and that later its joining the United Nations provided a further basis of obligation to cooperate, due to the Security Council resolution: para 447.

[13]       A hypothetical opposing view could be that the Court in Bosnia v Serbia was speaking to the specific case of a tribunal created by Security Council resolution, rather than treaty: “When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal.” para 445. This view could suggest than the Court’s subsequent interpretation is limited to the case of a tribunal established by Security Council resolution, and that in the context of the ICC ‘acceptance of jurisdiction’ means simply membership of the Rome Statute.

[14]       The International Law Commission notes that judicare has come to replaced punire “in order to reflect that an alleged offender may be found not guilty.” (2014, para 2).

[15]       The International Law Commission divides instances of the obligation into a typology of four models of obligation. Broadly, these are a) agreements to extradite in respect of certain crimes, with prosecution as a secondary obligation if extradition is refused, b) regional extradition treaties, c) the 1949 Geneva Conventions and the 1977 Additional Protocol I, and d) the ‘Hague Formula’, derived from the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and which appears in most of the Conventions discussed below (2014, paras. 6-10). Alternatively, Judge Yusuf in his separate opinion in Belgium v Senegal articulated two categories of conventions creating the obligation: a) those which impose first an obligation to extradite, where prosecution becomes an obligation only after extradition has been refused, and b) those which impose a primary obligation to prosecute, with extradition as an alternative to relieve that obligation: ([2012] paras 19-22).

[16]       “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

[17]       “The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.”

[18]       “The State party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.”

[19]       “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”: Articles 49, 50, 129 and 146 of Geneva Conventions I, II, IIIand IV respectively; “The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.”: Additional Protocol I, art 85(1).

[20]       “Without prejudice to the jurisdiction of an international criminal court, the State party in the territory of which an individual alleged to have committed a crime set out in article 17 [genocide], 18 [crimes against humanity], 19 [crimes against United Nations and associated personnel] or 20 [war crimes] is found shall extradite or prosecute that individual.” The Draft Code later became the basis for the Rome Statute, hence replacing the obligation aut dedere aut judicare with cooperation obligations.

[21]       Judge Xue dissents on other points, namely admissibility and the nature of obligations erga omnes.

[22]       The necessary additional requirements of torture as a war crime are observed by Cassese (2008, pp. 149-150).

[23]       The necessary additional requirements of torture as a crime against humanity are observed by Cassese (2008, pp. 149-150).

[24]       That widespread or systematic practice of enforced disappearance constitutes a crime against humanity is reaffirmed in the preamble and article 5 of the Enforced Disappearance Convention.

[25]       Note that article 3 encourages combatting disappearances perpetrated by non-state actors.

[26]       Cumulative charging however is a controversial practice, see Bemba (Decision of 15 June 2009); and the contrary view: War Crimes Research Office (2010).

[27]       “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation or by the procedures expressly provided for in this Convention shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”

[28]       As an example, Judge Sebutinde found that declarations accepting jurisdiction by both parties to the Belgium v Senegal case could have founded jurisdiction ([2012], Separate Opinion of Judge Sebutinde, paras 32-40).

[29]       For a clear articulation of this strict alternative view, see Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, paras. 12-23.

[30]       The nature of erga omnes obligations was previously explained by the Court (in obiter) in Belgium v Spain ([1970], para 33).

[31]       Also see Furundžija [1998] paras 151-152.

[32]       Hostages Convention, preamble: “Being convinced that it is urgently necessary to develop international co-operation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism”; Enforced Disappearances Convention, preamble: “Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance”.

[33]       Reiterated in Kupreškić et al., Trial Judgement [2000] para 23: “This body of law does not lay down synallagmatic obligations, i.e obligations based on reciprocity, but obligations erga omnes (or, in the case of treaty obligations, obligations erga omnes contractantes) which are designed to safeguard fundamental human values and therefore must be complied with regardless of the conduct of the other party or parties.”

[34]       “A second report, to be submitted in 2016, will likely address… the obligation to submit the case to its competent authorities for the purpose of prosecution, unless the person is extradited to another State or surrendered to an international court or tribunal…”

[35]       The draft articles were adopted at the 3263rd meeting on 5 June 2015. The commentaries were adopted at the 3282nd meeting on 3 August 2015.

[36]       To add insult to (symbolic) injury, the Court awards costs against the Respondents “on a pro-bono basis” at para 2, and invites the NDPP to consider criminal charges at para 39.

[37]       See, e.g. Council of Europe (2006, pp. 119-122).