AU may ask ICJ for opinion on Bashir’s immunity from ICC prosecution

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.

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)