ICC Prosecutor in Khartoum and the legal discourses on cooperation: Sudan might be changing its posi
On October, 18th, 2020, the Prosecutor of the International Criminal Court (ICC) paid a visit to Sudan. In the true sense of the word, the visit is historical. Its importance has little to do with the fact that it is the first of a kind. All is in the timing and object of the visit. To state the obvious, Sudan represents a lot for the ICC. Indeed, if one country encapsulates the crisis the African Union has had - is still having in many ways - with the ICC, it is Sudan. At the same time, if there is a single legal question concerning cooperation with the ICC - that remains unsolved according to commentaries - that has generated the most voluminous case law, the most heated debates in legal and political fora, and even in the academia (see, for instance, Du Plesis and Tladi, Galand), it has the situation in Darfur/ Sudan as factual background. This question is the interpretation of articles 27 (irrelevance of official capacity) and 98 (cooperation with respect to waiver of immunity and consent to surrender) of the Rome Statute. It concerns requests for cooperation the Court addresses to states when the suspect would be a beneficiary of immunity by virtue of customary or conventional international law and is a citizen of a nonparty state to the Rome statute. In the concrete situation, the suspect in question was Omar Al Bashir, sitting head of the state of Sudan from 1989 to April 2019.
As it had to be expected, Sudan’s current position as far as cooperation with the ICC is concerned is fundamentally different from what it was under President Bashir. A cabinet statement has stressed Sudan’s willingness to cooperate with the ICC, not only because it is an international obligation but also as a response to popular demands for justice.
While this change of attitude is in itself important and interesting, this post is not limited to it. Its purpose is to draw comparisons between this change of attitude and the current position of the African Union. Indeed, since 2009, the year in which the first arrest warrant was issued against Omar Al Bashir, the African Union Assembly of heads of states and governments has been annually - or twice a year - adopting ‘decisions on the International Criminal Court’. The main theme of each one of those ‘decisions’ was a call to member states - including and mainly states parties to the Rome Statute - to not only ignore ICC requests for cooperation in the specific situation of Darfur/Sudan, but also to actively oppose any attempt made by the Court to get an African ‘senior official’ prosecuted for crimes under the jurisdiction of the Court. To be accurate, at some time, the ‘senior officials’ the African Union is concerned about also involved the President and Deputy President of Kenya. However, the concern over the Kenyan leaders only lasted for three years. In addition, the legal questions were different in the two cases, Kenya being a state party to the Rome Statute and having chosen to cooperate with the Court, at least in principle.
The first ‘decision’ adopted after Bashir’s fall seems to indicate a slight change in the AU’s position/strategy. Its significance is the object of this post. The only way to understand the new ‘decision’ is, however, to look at it from a historical perspective. A concise indication of Sudan’s current position is, however, imperative.
1. Sudan’s stance in 2020: Giving up an untenable position and coming back to its senses
With her delegation, Prosecutor Bensouda intended to discuss methods of cooperation between the Government of Sudan and the ICC with regard to suspects against whom the Court has issued warrants of arrest. It is worth mentioning that, in addition to former President Al Bashir, other suspects include Abdel-Rahim Muhammad Hussein, Ahmed Haroun and Ali Muhammad Ali Abd-Al-Rahman commonly known as Ali Kushayb, the latter already being in the ICC detention Centre.
One cannot avoid linking the object of the visit with the fall of Omar Al Bashir. Indeed, before April 2019, the conversation with Sudan was not on methods of cooperation but on the very principle of cooperation. It is worth recalling that Sudan’s position at the time of Al Bashir as President was that not being a party to the Rome Statute, the State had no obligation to cooperate with the ICC (see, here, paras 9-12). This position was held despite the language of resolution 1593 (2005) of the United Nations Security Council referring the situation in Darfur to the Court and by which the Council literally ‘decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor….’
That language, added to the fact that the Security Council was acting by virtue of its Chapter VII powers, made Sudan’s legal position weak, to put it mildly. The ICC's Pre-Trial Chamber II dismissed Sudan's arguments. (See, however, Kiyani).
2. From 2009 to 2012: AU’s long walk to the clarification of the legal position
The first ‘decision’ by the African Union Assembly on the issue of cooperation with the ICC was adopted in early February 2009 after the indictment of Al Bashir. In essence, the decision states that the indictment would ‘undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur’ (para 2) and requests the United Nations Security Council to defer the proceedings in the ICC by virtue of article 16 of the Rome Statute (para 3). The request to the Security Council to defer the proceedings was officially based on AU’ alleged ‘strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.’ It is interesting to observe that that decision did not raise any legal objection to the indictment. Also worth noticing is that the question of immunity was not mentioned anywhere in the text.
It is only in January 2010 that a discomfort with regard to some provisions of the Rome Statute was expressed and this led the Union to invite African states which are also parties to the Rome Statute to suggest their modification during review conferences (see here).
Disappointed by the fact that the United Nations Security Council was not acting to defer the proceedings according to article 16 of the Rome Statute, the Assembly decided in July 2010 that ‘AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan.’ On a more general and less radical note, the Assembly requested its members which are also states parties to the Rome Statute ‘to balance, where applicable, their obligations to the AU with their obligations to the ICC.’ (para 6). A not so implicit rebellion against ‘The Hague’ was launched. It should be clear that, at that point, no claim that any of the ICC organs was violating the Rome Statute was made by attempting to prosecute Omar Al Bashir. It is the ICC’s ‘wisdom’ that was in question.
When later, members of the organization were found in violation of their Rome Statute obligations by failing to arrest Omar Al Bashir while on their territories - most of the time attending AU summits -, the Assembly of that organization supported them. It was argued that by hosting - and not arresting - Bashir, those states were simply discharging their obligations under the Constitutive Act of the African Union as well as acting in pursuit of peace and stability in their respective regions (see here). Some of those states also raised the point that disregarding AU’s obligations would have exposed them to the sanctions provided for by article 23 of the aforementioned Constitutive Act.
In the July 2010 session of the Assembly, the claim was explicitly made that Article 98(1) of the Rome Statute justified States parties failing to arrest Bashir. For the first time, the allegation that the ICC might itself be violating its creating instrument and international law in general was made.
AU’s legal position on the matter was however the most clearly expressed in the 2012 ‘decision’. According to the Assembly: ‘Article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute, and by referring the situation in Darfur to the ICC, the UN Security Council intended that the Rome Statute would be applicable, including Article 98.’
3. Attempts to have the legal question answered
From 2012 onwards, each and every Assembly’s ‘decision on the International Criminal Court’ has highlighted the immunity question. In addition to political activism - which involved the adoption of an ‘ICC withdrawal strategy’ (para 8) steps to have the legal question addressed were made. The most important seems to be the instruction given to the African Group in New York ‘to place on the agenda of the United Nations General Assembly a request to seek an advisory opinion from the International Court of Justice on the question of immunities of a Head of State and Government
and other Senior Officials….’ (para 5, ii) At the same time, African states that are also parties to the Rome Statute were asked to request the ICC Assembly of States Parties (ASP) to convene a working group of experts from its member states to propose a declaratory/interpretative clarification of the relationship between articles 27 and 98 of the Rome Statute (para 5, i). One can wonder how this second initiative would have solved the problem. As it is obvious, the question is rather about the interpretation of the Statute and as such, it can only be dealt with authoritatively by a competent court, and not a body of independent experts. After a somewhat contradictory jurisprudence, the ICC Appeals Chamber eventually took a final position on the matter on 6 May 2019 in an appeal filed by Jordan.
As for the request of an advisory opinion to the ICJ on the immunity issue, the wisdom of the approach has been questioned, from the beginning. (See, for instance, Orina). In a legal order with no judicial hierarchy, what such an opinion would have authoritatively added to the discussion is not obvious, assuming it was different from ICC’s decision on the matter. Fragmentation was a real risk. Cynics would say that this was probably the outcome the AU desired, for political purposes. The fact is however that the United Nations General Assembly never made the move to request the advisory opinion to the ICJ. The Union found itself in the obligation to change the strategy.
4. The 2020 Assembly Decision: Back to long-term strategy or pure politics?
In principle, Bashir’s fall did not make the African Union change its position on the immunity question, neither legally nor politically. After all, why should it have? Contrary to the Sudanese government for whom Al Bashir is just an individual, the African Union has to see each head of a non-state party as a potential Bashir (in his pre-April 2019 status).
It is with this background that the 2020 ‘decision on the ICC’ is very critical to the Court which it accuses, as usual, of ‘increasing politicization’ (para 8). More to the legal point, the decision openly calls AU member states to ‘oppose’ the ICC judgment on the matter of non-compliance by Jordan (para 7). As already mentioned, that judgment states in the clearest possible terms that states parties to the Rome Statute are obliged to cooperate with the Court - including for the enforcement of warrants of arrest - even when the suspect is a head of non-state party to the Rome Statute. The decision is so far the most authoritative on the matter, being the first to be delivered by the ICC Appeals Chamber. Furthermore, while previous AU decisions had been calling for a ‘balance’ between obligations to the AU and obligations towards the Court, the 2020 decision calls member states, including state parties to the Rome Statute, ‘to prioritise the implementation of Assembly Decisions on the ICC’ (para 8). In simpler terms, it is openly calling those states to ignore ICC orders to cooperate when suspects are heads of states or other… ‘senior officials.’ In fact, the ‘balance’ terminology had always been nothing more than diplomatic language. Most of those resolutions were explicit on the fact that the real obligation, from the AU’s point of view, was for states parties to the Rome Statute ‘to honour their other international obligations as stipulated in Article 98, which includes the right to host international meetings and to ensure the participation of all invited delegations and high officials.’ (para 6)
The most remarkable point in the 2020 decision is however that the African Union is rolling back in its attempts to have the legal question addressed. Indeed, the decision orders the African Group in New York to remove the request for an advisory opinion from the agenda of the United Nations General Assembly until further notice (para 9). The move is quite obviously dictated by a despair that the UN General Assembly may never request the advisory opinion from the ICJ. Complaints that issues raised by the African Group are often ignored by the General Assembly are rather frequent.
Another example often mentioned is the treatment of the issue regarding the scope of universal jurisdiction (para 4). It can also be assumed that the AU does not consider the matter as urgent anymore. Indeed, after Al Bashir’s fall and the collapse of the Kenyan cases, there is no ‘senior official’ immediately at risk of going through ICC proceedings as an accused. With a new prosecutorial strategy which seems to have ‘learnt a lot’ from previous failures - especially as far as cooperation is concerned, the AU might be rather devising a long-term strategy.
The alternative approach adopted by the Assembly is a continued push for the amendment of the Rome Statute. In that perspective, the African Commission, the African Groups in The Hague and New York have been requested to develop a matrix of issues of concern to African States. These include issues relating to the rights of the accused and the immunities of Heads of State and Government and other senior officials (para 10).
If any change is to be read in the AU’s 2020 ‘decision on the International Criminal Court’, it is not on the substance of the position. It is rather on strategy. As it could be anticipated, from the very beginning of the AU-ICC crisis, it was not about Bashir. Nor was it about the Law. It was about the politics of who can be asked to account for crimes of mass atrocity committed on the African continent. It turns out that, from the AU’s point of view, that person can never be a ‘senior official’. The idealists who included article 27 in the Rome Statute can keep it for themselves.
 See the following resolutions: Assembly/AU/Dec.245(XIII) (July 2009); Assembly/AU/Dec.270(XIV) (February 2010); Assembly/AU/Dec.296(XV) (July 2010); Assembly/AU/Dec.334(XVI) (January 2011); Assembly/AU/Dec.366(XVII) (July 2011); Assembly/AU/Dec.397(XVIII) (January 2012); Assembly/AU/Dec.419(XIX) (July 2012); Assembly/AU/Dec.482(XXI) (May 2013); Ext/Assembly/AU/Dec.1 (October 2013); Assembly/AU/Dec.493(XXII) (January 2014); Assembly/AU/Dec.547(XXIV) (January 2015); Assembly/AU/Dec.586(XXV) (June 2015); Assembly/AU/Dec.590(XXVI) (January 2016); Assembly/AU/Dec.616 (XXVII) (July 2016); Assembly/AU/Dec.622(XXVIII) (January 2017); Assembly/AU/Dec.672(XXX) (January 2018); and Assembly/AU/Dec.738 (XXXII) (February 2019).