SNAFU at the AU: Is Regionalism the ICC's Biggest Challenge? Commentary
SNAFU at the AU: Is Regionalism the ICC's Biggest Challenge?
Edited by: Jeremiah Lee

JURIST Guest Columnist Wes Rist of the University of Pittsburgh School of Law says that if the African Union is successful in its bid to sway the UN Security Council to delay the ICC case against Sudanese President Omar al-Bashir, not only will the incipient attempt to use international criminal sanctions as a tool for resolution of the Darfur conflict have failed, but the promise of truly international criminal responsibility will have suffered a significant blow at the hands of regional politics…..


The news from the 12th African Union Summit in Addis Ababa that the regional body will seek to generate enough international support to delay the International Criminal Court’s proposed indictment of Sudanese President Omar al-Bashir is no surprise. Political leadership in Africa has been against ICC involvement in Darfur since UN Security Council Resolution 1593 was passed in late March, 2005. But for the AU to take this kind of position could have broader implications and could represent the first step on a road to regionalism posing a significant challenge to the principles of international criminal responsibility.

Bashir is only potentially before the ICC because of the UN Security Council’s historic decision to refer the situation to the ICC under Article 13 (b) of the Rome Statute. Under that provision, the ICC can exercise jurisdiction in a state not a party to the Statute only if the Security Council exercises its powers under Chapter VII of the UN Charter to refer the situation to the Office of the Prosecutor. The 2005 Resolution was historic not only because of the UN Security Council’s decision to act, but also because both the United States, which under the Bush administration actively opposed the ICC, and China, which has historically opposed any UN intervention in Sudan, chose to abstain from the vote rather than exercise their veto power.

Ironically, the African Union seeks to use another aspect of the Rome Statute to prevent, or at least delay, any action by ICC Prosecutor Luis Moreno-Ocampo in pursuing the investigation in Sudan. Article 16 of the Rome Statute allows the UN Security Council to delay, for a renewable 12 month period, an investigation or prosecution before the ICC pursuant to a Chapter VII resolution. The decision to pursue the political action of seeking an Article 16 deferral raises several interesting questions about both the ICC’s ultimate authority and the role that regionalism has to play in international criminal law. The implication of Article 16's requirement that the Security Council “request” the deferral under Chapter VII implies that the pursuit of the investigation or prosecution would represent a “threat or breach of international peace and security.” Since the only reason the ICC has jurisdiction over Sudan is because the Security Council had previously held that the same situation represented a “threat or breach” in and of itself, it seems difficult to believe that the Security Council would reverse that finding. But international law, and even international criminal law, is as much about international relations as it is the text of the UN Charter or the Rome Statute. Four years is a long time in global politics and the challenges raised by the AU against the ICC may carry enough political weight to give the Security Council pause. In an odd twist to proponents of international criminal responsibility, the veto power of the five permanent members of the UN Security Council may actually be used on their side for once. Any of the permanent members can prevent an Article 16 delay by simply choosing to veto the Resolution. Certainly U.S. advocates of the ICC have new reason to hope that the Obama Administration might choose to use that opportunity as a signal of the United States’ change in attitude towards global accountability for war crimes and crimes against humanity.

The challenges to the ICC’s authority posed by Article 16 are blatant and are certainly well-discussed in international criminal law scholarship. The ability of a political organization to delay the justice offered by the ICC in favor of the “peace and security” that is the province of the UN Security Council raises questions of competing principles in international affairs and the ultimate independence of the ICC itself. Lengthy articles have been written on this subject, and I will not address them here. But the AU’s proposal goes to the heart of what opponents of Article 16 have been warning since the compromise that included the provision in the Rome Statute was reached.

The allegations and implications arising from the AU’s statement raise their own problems, however. AU officials “expressed concern” over the all-African docket the ICC currently boasts. Certainly, the single region nature of the Court’s activities have been fodder for its opponents. And a more cynical individual might question Prosecutor Ocampo’s release of a report that he is reviewing options for ICC jurisdiction over Israeli actions in Gaza on the same day as the AU’s announcement as politically rather than substantively driven. But much of the language from Addis Ababa is troubling regardless of the makeup of the ICC’s docket. AU Commission Chair (equivalent to the position of OAU Secretary General) Jean Ping expressed concern that the ICC was biased and failing to maintain judicial impartiality because of its lack of non-African cases. Mr. Ping raises valid points about the homogenous nature of the ICC’s current case load which have absolutely no impact on whether or not President al-Bashir should actually be indicted for criminal violations under the Rome Statute.

The subtext here that should be troubling to proponents of international criminal law is that political attention has been shifted away from whether or not al-Bashir is a valid target of the ICC and onto a regional approach to the enforcement of international criminal law. The AU’s position of advocating for a regional response to Darfur instead of taking advantage of the rare backbone shown by the UN Security Council in issuing Resolution 1593 could be a herald of a more regionally obstructive approach to international criminal law. The ICC is certainly still in its early stages of development – a toddler, if no longer an infant. And while the lack of non-African cases on its docket is of concern and the call for ICC involvement in Gaza may be a true test of its ability to address global impunity, that does not remove African situations from the ICC's valid jurisdiction.

Should the AU be successful in its bid to sway the UN Security Council to an Article 16 deferral, not only will the attempt to use international criminal sanctions as a tool for resolution of the Darfur conflict have failed, but the promise of truly international criminal responsibility will suffer a significant blow. The AU action will cement the possibility of political delay and obfuscation as a valid response to a threatened or ongoing ICC investigation firmly into the minds of other formal and informal regional groupings. Challenges to the ICC’s jurisdiction when truth and reconciliation proceedings or even simply no
n-judicial resolutions to a conflict are proposed are already a part of the international criminal scholarship, and certainly are used by targets or opponents of the Court. Even should the ICC quickly expand its case load outside the African continent to refute the “Africa only” allegation, there are going to be other regional organizations, formal or ad hoc, which will see the Court’s involvement as an intrusion and will latch on to the AU example in Sudan as a blueprint for opposition to ICC investigations or procedures. Certainly, in these situations, the smaller size of the Security Council generally and the veto power of its permanent members may serve to limit the repeat effectiveness of Article 16 deferrals, but once the genie is out of the bottle, it may be impossible to put him back in. The AU’s bid to defer the UN Security Council approved investigation of Darfur is the first step on a road that could see regionalism as the ICC’s greatest challenge to ending impunity for humanitarian violations. A truly international criminal law may yet be thwarted by regional politics.

Wes Rist is an Adjunct Professor and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He was a member of JURIST's student staff from 2004-2006, and served as JURIST's International Law editor from 2005-2006.
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