Immunity before the International Criminal Court: Still hazy after all these years

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Date: 16 August 2019
• Author: Linda Mushoriwa
• Citation: (2018) 31 SACJ 339
• Pages: 339-360

Immunity before the International

Criminal Court: Still hazy after all

these years

LINDA MUSHORIWA*

ABSTRACT

This art icle examines the incr easingly deteriorati ng relationship between

the African Un ion (AU) and the International Cri minal Cour t (ICC OR ‘the

Court’). It explains that the te nsion between the AU and the ICC is primarily

centred on the issue of Head of State i mmunity before the Cou rt. The

contradictory nat ure of the provisions in article 27 (2) and article 98 (1) of the

Rome Statute of the Intern ational Crimi nal Court (Rome Stat ute) regarding

the immunit y of state ofcials before t he ICC has contributed signi cantly

to this tension. The incon sistent jurisprudence of t he ICC regarding the

immunity ques tion before the Court is ex amined and it is asser ted that

Jordan’s appeal against Pre-Trial Chamb er II’s Decision on non-cooperation

and the possibility o f an ICJ Advisory Opin ion on the issue of Head of

State Immunit y before the Court; both pr esent an opportun ity for the

clarication of the i nterpretation of ar ticle 98 (1) of the Rome Statute. The

article concludes that althoug h the work of the ICC is important in ensuring

accountability for alleged hum an rights violations, the Rome St atute cannot

operate in isolation, divorced from t he realities of the tr avel of leaders such

as Sudanese President Omar A l-Bashir; for legiti mate intergovernmenta l

business.

1 Introduction

At the 30th AU (AU) Summit of Heads of States and Government held

in January 2018, the AU Assembly agreed to seek an advisor y opinion

from the International Cour t of Justice (ICJ) regarding the issue of

head of state immunity before the Inter national Crimi nal Court (ICC

or ‘the court ’).1 Previously, in 2012, the AU Assembly requested the

AU Commission to consider seeking an advisory opin ion of the ICJ

* LLB (University of Z imbabwe), LLM (UNISA), PhD Candidate (Univer sity of KwaZulu-

Natal). This ar ticle is largely based on a Ph D thesis submitte d to the University of

KwaZulu-Natal for exami nation. The author is h ighly indebted to Mr C hristopher

Gevers and Professor Sha nnon Bosch for their guidance i n the writing of this ar ticle.

1 ‘Decision on the Inter national Criminal Cou rt’ (Assembly/AU/Dec.672 (XXX)) (2018)

para 5 (ii).

339

(2018) 31 SACJ 339

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on the matter,2 however the proposal did not get much support and

no further action was ta ken at the time. The recent decision to seek

an advisory opinion from the ICJ on the iss ue takes place against the

backdrop of an increasingly deteriorating relationship bet ween the AU

and the ICC,3 following the indict ment of Sudanese President Omar

Al-Bashir in 2 009 and the conr mation of charges against Kenyan

President Uhuru Kenyatta and his deput y William Ruto in 2012.4

The contradictory natu re of the provisions of the Rome Statute of the

Internation al Criminal Cour t (Rome Statute) regarding the immunity

of state ofcials before the ICC has contributed signi cantly to these

tensions between the AU and the ICC. Art icle 27(2) provides for the

irrelevance of immunities before the ICC, wh ilst art 98(1) provides

that the court must rst obt ain the cooperation of a third s tate for the

waiver of immunity before proceeding with a req uest for arrest and

2 ‘Decision on the Progre ss Report of the Com mission on the Implement ation of

the Assembly Deci sions on the Internat ional Crim inal Court (ICC)’ (As sembly/AU/

Dec.397 (XVI II)) (2012) para 10; D Akande ‘The Afr ican Union’s response to the

ICC’s decision on Bashir ’s immunity: Wil l the ICJ get another i mmunity ca se’ EJIL

Talk , 8 February 2012, available at ht tps://www.ejiltalk.or g/the- african-union s-

response-t to-the-iccs -decisions- on-bashirs-immunity- will-the-icj- get-another-

immunity-cas e/, accessed on 3 November 2018.

3 For detailed commenta ry on the deteriorating relationsh ip between the AU and the

ICC see generally J Van der Vy ver ‘Prosecuting t he president of Sudan: A dispu te

between the Af rican Union and the I nternational Cr iminal Co urt’ (2011) 11 Afr

Hum Rights LJ 683; G Naldi & D Magli veras ‘The Inter national Cri minal Cour t and

the Africa n Union: A problematic relation ship’ in C Jalloh & I Bantek as (eds) The

International C riminal Court and Africa (2017) 115.

4 The ICC issued two war rants of arres t against Al -Bashir; the  rst one on 4 March

2009 for war cri mes and crimes ag ainst human ity (Pre-Trial Chamb er I ‘Warrant of

Arrest for Oma r Hassan Ahm ad Al-Bashi r’ ICC-02/05 -01/09-1) and the second on

12 July 2010 for genocide (Pre-Trial Chamber I ‘ Second Warrant of Ar rest for Omar

Hassan Al-B ashir’ ICC - 02/05-01/09-9 5). On 23 January 2012 the Cour t conrmed

charges of crim es against huma nity again st Ruto (The Prosecutor v W illiam Samoei

Ruto, Henry Kipron o Kogsey and Joshua Arap Sang ICC-01/09- 02/11-382), Pre-Trial

Chamber II ‘Deci sion on the Conr mation of Charges P ursuant to Ar ticle 61(7)(a)

and (b) of the Rome Statute’ (ICC -01/09-01/11-373). In November 2012 the Court also

conrmed cha rges against Kenyat ta for crimes aga inst humanit y (The Prosecutor

v Uhuru Muigai Kenyatta ICC -01/09-02 /11-t382), Pre-Trial Chamber II ‘Decision

on the Conrm ation of Charges Pu rsuant to Ar ticle 61(7)(a) and (b) of t he Rome

Statute’. The charges aga inst Al-Ba shir emanate fro m the armed con ict in Darf ur,

Sudan whilst ch arges against Kenyat ta and Ruto emanate d from the post-elec tion

violence which occur red in Kenya following the 20 07-2008 election s. Charges

against Kenyatt a and Ruto were withdrawn i n 2014 and 2016 respectively due to

insufcient ev idence, but the arrest warrant s against Al-Bashi r remain a contentious

issue.

340 SACJ . (2018) 3

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