Update: Immunity or Impunity for African Heads of State

The divergence of opinion regarding head of state immunity for international crimes remained in the headlines in the month of February. In particular, there have been two seemingly conflicting developments on this front in Africa:

1. AU request for advisory opinion on head of state immunity

At the beginning of February at the 30th African Union Summit of Heads of State and Government, the African Union decided to pursue a request for an advisory opinion from the International Court of Justice on the longstanding AU bugbear of immunities of heads of state and government and other senior officials. In particular, the AU is seeking clarity on the interrelationship and legal dynamics between Article 27 of the Rome Statute (irrelevance of official capacity); Article 98 (cooperation with respect to waiver of immunity and consent to surrender); and the obligations of ICC states parties under customary international law.

Considering the longstanding friction between the AU and the ICC, the request for ICJ "mediation" might not be a bad idea. The ICJ's broader role is, after all, to peacefully settle disputes between States (or, in this case, other supranational entities) in accordance with international law. An additional upshot of the request is that it might benefit those African states that are ICC state parties (like Kenya below) and seemingly caught in the crossfire between the AU and the ICC on this front.

2. Kenyan Court of Appeal confirms duty to arrest President Al-Bashir

On 16 February 2018, the Kenyan Court of Appeal ruled that Kenya had acted with impunity when failing to arrest President Al-Bashir when he visited the country in 2010[1]. This, according to the judgment, violated the Rome Statute as well as Kenya's constitution and national law. Furthermore, the Court ruled that Kenya is bound by its international obligations to cooperate with the ICC to execute the still outstanding arrest warrant for Al-Bashir, should he visit the country again in future. In this regard, the court held that "“as a matter of general customary international law it is no longer in doubt that a Head of State will personally be liable if there is sufficient evidence that he authorised or perpetrated those internationally recognised serious crimes”.

The judgment then is quite similar to that of South Africa's Supreme Court of Appeal, which, in a unanimous judgment, held that the failure of South African authorities to take steps to arrest and detain President Al-Bashir for surrender to the ICC was inconsistent with South Africa‘s obligations in terms of the Rome Statute as well as section 10 of the ICC Act. Thus, inasmuch as there is clearly political support for the move to approach the ICJ, legal pronouncements from authoritative national courts in Africa (as well as those from the ICC itself) do not bode too well for the AU's chances of securing a favourable outcome at the ICJ, should the AU push ahead with its move to request an advisory opinion.

[1] The judges also ruled that the provisional warrants of arrest provided for under Kenya's International Crimes Act and issued on November 2011 should not have been issued by the High Court when it was clear that Al-Bashir was no longer coming to Kenya.