AU may ask ICJ for opinion on Bashir’s immunity from ICC prosecution
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January 31, 2012 (KHARTOUM) – The leaders at the African Union (AU)
summit in Addis Ababa asked the chairperson of the pan-African body to
consider moving the case of Sudanese president Omer Hassan al-Bashir
before the International Court of Justice (ICJ) for an opinion.
JPEG - 26.8 kb
Judges of the International Court of Justice
Bashir is wanted by the International Criminal Court (ICC) in
connection with war crimes, crimes against humanity and genocide
allegedly committed in Sudan’s western region of Darfur since the
conflict broke out between the central government in Khartoum and
insurgents belonging mostly to African tribes.
The AU objected to the warrants and under pressure from late Libyan
leader Muammar Gaddafi adopted several resolutions since 2009 calling
on its members not to cooperate with the ICC in arresting the Sudanese
leader even if they are signatories of the Rome Statute which is the
founding text of the Hague tribunal.
This has enabled Bashir to travel to the African ICC member states of
Chad, Kenya, Djibouti and Malawi without incidents as officials in
these countries referred to AU decisions granting immunity to the
Sudanese president in the continent.
But ICC judges issued a ruling last month asserting that the AU
resolutions cannot be used as an excuse to flout member states
obligations under the court’s treaty. They also dismissed arguments
that Bashir’s status as a sitting head of state grants him immunity
from criminal prosecution.
Today the Xinhua news agency reported that the AU leaders affirmed
that the ICC has no legal powers to remove the immunity that
international law grants to state officials who are not parties to the
Rome Statute.
They asked the AU Commission to consider seeking advice from the ICJ
regarding the immunity of state officials under international law.
In 2000 the ICJ held in its ruling on the Congo vs. Belgium that there
are certain exceptions to the principle of immunity of serving
officials where an incumbent “may be subject to criminal proceedings
before certain international criminal courts, where they have
jurisdiction. Examples include the International Criminal Tribunal for
the former Yugoslavia (ICTY), and the International Criminal Tribunal
for Rwanda (ICTR)….and the future International Criminal Court (ICC)”.
It remains to be seen whether the AU will actually move forward with
its plans to challenge the ICC warrant against Bashir before the ICJ.
In 2008 the Sudanese government backed away from requesting an ICJ
advisory opinion on the United Nations Security Council (UNSC)
resolution 1593 which referred the situation in Darfur to the ICC for
investigations.
Khartoum has reportedly feared that an ICJ opinion may not come in its
favour and thus weaken its position on the issue.
(ST)
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