#GlobalJustice Weekly: AU seeks ICJ opinion on head of state immunities | Witnesses take stand in two ICC trials

UN Secretary General poses for a group photo with African Union leaders at the opening of their Summit in Addis Ababa, Ethiopia © United Nations

Challenging ICC, AU seeks opinion on head of state immunities from top UN court

The 30th session of the African Union Summit of Heads of State and Government concluded this week in Addis Ababa with the regional body agreeing to move forward with a request to seek an advisory opinion from the UN’s highest court - the International Court of Justice - on the question of immunities of heads of state and government and other senior officials.

The move comes following years of legal wrangling around the execution of the International Criminal Court arrest warrants for Sudanese President Omar al-Bashir, who has travelled to several African countries that are states parties to the Rome Statute, the ICC’s founding treaty.

Most recently, ICC judges found that South Africa had failed to comply with its obligations under the Rome Statute to arrest al-Bashir during a 2015 visit. The African Union supports South Africa’s position that competing obligations under customary international law trump obligations under ICC law.

In instructing its African Group in New York to immediately place the request for the ICJ Advisory Opinion on the agenda of the United Nations General Assembly, the African Union is seeking clarity on relationship between Rome Statute Article 27 (irrelevance of official capacity) and Article 98 (cooperation with respect to waiver of immunity and consent to surrender) and the obligations of ICC states parties under wider international law.

Allan Ngari, Senior Researcher with the Institute for Security Studies in Pretoria:

"Ideally, the judges of the ICC’s Appeals Chamber should interpret the court’s founding law with finality, but such a decision might not be perceived as truly objective by African states and the AU that have questioned the legitimacy of some of the ICC’s work, particularly with respect to the arrest warrant against President Omar al-Bashir of Sudan.  If framed correctly by the UNGA, an Advisory Opinion of the ICJ presents an opportunity to resolve the differences in interpretation of the question of immunities from prosecution for sitting heads of state before the ICC and possibly the corresponding obligations on States and non-States parties with the cooperation regime of the ICC. These questions are at the heart of the tensions between African states and the AU on the one hand, and the ICC on the other.”

The AU also instructed the Africa group of ICC states parties to request the establishment of a working group on the question of immunities and related cooperation, and to urge the next Assembly of States Parties of the ICC to withdraw from its agenda the consideration of the Draft Action Plan on Arrest Strategies.

The gathering of African heads of states also expressed deep concern with the ICC’s July 2017 decision that found South Africa non-compliant with the Rome Statute and condemned the opening of the ICC investigation in Burundi in 2017.

Addressing the summit opening, African Union Commission chairperson, Moussa Faki Mahamat said that 2018 is would be the year of the battle against corruption and for institutional reform.

UN Secretary General Antonio Guterres also spoke at the opening of the summit, saying the partnership between Africa and the UN was “solid, and grounded on sound principles of human rights and good governance.”  Guterres also met with al-Bashir to discuss issues such as the joint AU-UN peacekeeping force in Darfur. 


Witness testimonies continue at ICC trials   

The Ongwen trial hearings have continued this on the 15th January after a 45 day break with several witnesses being called for the prosecution. Witnesses include a former fighter who was kidnapped by the Lord’s Resistance Army and later took part in an attack on a camp for internally displaced people where his relatives lived.

Another witness testifying recently was a woman who had previously been in the household of Ongwen before being given as a “wife” to another LRA commander. The witness claimed she was eleven years old when she was kidnapped by the LRA, while Presiding Judge Bertram Schmitt noted that evidence suggested she could have been as young as eight years old. She spoke about her time as an LRA wife and the difficulties she faced upon returning home.

International Justice Monitor has asked community member in northern Uganda for their views on how they felt the first year of the Ongwen trial has played out. Concerns included slow pace of the trial proceedings, the criteria for witness selection, and the distance from The Hague to where the victims are located. 

The recess for the trial of Laurent Gbagbo and Charles Blé Goudé ended last week as proceedings resumed with the testimony of Professor Hélene Yapo Ette, a forensic physician and prosecutor Bensouda’s final witness. Laurent Gbagbo and Charles Blé Goudé are charged with four counts of crimes against humanity, including murder and rape. The accused allegedly committed these crimes during post-electoral violence in Côte d’Ivoire between December 16, 2010 and April 12, 2011.

The witness testimony focused on her work as a forensic expert during the post election crisis, during which several families were pressing to recover the bodies submitted by her teams for examinations. She claimed: “In several cases, relatives of victims said bodies were those of people who had been shot dead. The reports give another version.”

After the closing of the hearing on Friday 19th January, it was expected that the defence witnesses would be called as soon as the trial resumed. However, there was no information given as to when witnesses for the defence are to be called, while Presiding Judge Cuno Tarfusser did not disclose details on the date of the next hearing.

The Bemba appeal hearings also continued this month with discussions concerning the legal characterisation of the the level of knowledge a commander should have regarding his subordinates’ crimes in order to be held liable under command responsibility for them.

In 2016, Bemba was convicted of murder, rape, and pillaging after his failure to take reasonable measures to deter or punish his troops for crimes they committed in the Central African Republic. Hearings initially also focused on Bemba’s 18 year sentence, with defence lawyers arguing that this was vastly disproportionate to his conviction.

In response to this, the prosecution and legal representatives for victims claimed that the 18 year sentence was lower that what the former commander deserved, and now are asking judges to raise the sentence to a minimum of 25 years. 

ICC investigations

Darfur, Sudan: Jordan has appealed the Pre-trial Chamber’s decision of non-compliance with the arrest warrant against President Al Bashir. The Pre-trial Chamber had referred Jordan to the Assembly of State Parties and the UN Security Council.

Jordan claims that the  arrest warrant is at odds with its treaty obligations under the 1953 Convention on the Privileges and Immunities of the Arab League. The case has turned out to be the latest in an ongoing saga in which states have disregarded the arrest warrant for President Al Bashir, who is charged for genocide, crimes against humanity and war crimes in Sudan.


Preliminary examinations

Afghanistan: Kabul has been hit by a a new surge of attacks. The Taliban have claimed responsibility for an attack carried out through a vehicle painted as an ambulance, bearing the distinctive medical emblem. In a separate incident, gunmen attacked an army post at Kabul’s military academy.

Different groups have been blamed for the attacks: the Afghan officials have held Pakistan responsible for the attack on the army post, whereas the United States is ‘confident’ that the ambulance bombing was carried out by the Haqqani network.

On 20th November 2017 the Office of the Prosecutor of the ICC applied for judicial authorisation to initiate investigations into alleged war crimes and crimes against humanity in Afghanistan against the Taliban regime and its affiliated Haqqani Network, the Afghan National Security Forces, and the United States armed forces.

Colombia: The Colombian government suspended talks with the National Liberation Army (ELN) group after it carried out a series of bomb attacks, killing police officers and injuring civilians.

Meanwhile, the leader of the FARC group in Colombia, Rodrigo Londono, has announced his intention run for the presidential seat in the upcoming 2018 elections. The group has based its campaign on a socialist, anti-poverty pledge, promising free university education, improvements to healthcare, and an improvement in basic infrastructure.


Campaign for global justice

Syria: The UN Secretary General has called on the Security Council to refer atrocities by the Assad regime to the ICC. In his report to the Council, Guterres, highlighted the Assad regime’s blockade of humanitarian aid to civilians, stating that, “accountability for serious violations is a requirement under international law and central to achieving sustainable peace.”


Around the world

United States: A leaked cable from the US State Department has indicated President Trump’s plans to sign an executive order to keep Guantanamo bay open. Activists have condemned this move, lamenting the lack of intervention by courts.

Myanmar: Myanmar authorities released a list of ‘terrorists’, naming and sharing pictures of a group of persons without giving details of the charges against them. The move has been criticised as violating due process and fair trial rights of the accused. The International Commission of Jurists has stated its concerns that the “accusations may be arbitrary.”