‘Omar Dis-Appear‘: The Potential Legal Effects of Africa’s Withdrawal from the International Criminal Court as a Result of the Omar Al-Bashir Debacle

By Rui Lopes — AAT & AAF contributing author (“The Fascinating Story of Thula Madonsela and Being Undermined“)

The mass withdrawal of the Rome Statute by African states leaves most of them with little to no discretion on whether to prosecute jus cogens crimes envisaged in the courts jurisdiction due to the absence of the complementarity principle, the principle on which the International Criminal Court is based. These States are therefore forced to prosecute these crimes towards the international community in all instances. However, due to the underdeveloped nature of most of these states legal systems, such mainly being the reason for many African states having become signatories to the International Criminal Court in the first place, such States will be unable to prosecute these crimes, thus breaching their obligations erga omnes owed to the international community as a whole.

The International Criminal Court

The International Criminal Court (ICC) was envisaged as being the first permanent international criminal court prosecuting the most serious crimes committed towards the international community. The nature of the ICC is sourced within an international treaty namely the Rome Statute. Treaties are by many academics compared to contracts, which in order to be performable, the contracting parties must consent to the imposition of obligations and must have the requisite intention to be bound by such. In a situation where a party no longer possesses either the intention to fulfil their obligations or in turn no longer intends to be bound by the contract, such a contract cannot continue and must be terminated.

In much the same manner, Article 127(1) of the Rome Statute visualises situations where States no longer wish to remain a party to the treaty. The Article provides that States may, through a written notice to the Secretary General of the United Nations, withdraw from the Statute. Such a withdrawal shall however only take effect one year after the receipt of such notice. 

On closure examination of the Article, such holds the legal implication that the withdrawing State is bound in its entirety to the Rome Statute for one further year after providing its notification of its intention to withdraw. It has in essence added a provisio to the ‘contract’ that even where a party no longer possesses the relevant intention to be bound (animus contrahendi) or where the party no longer intends to fulfil its obligations, the contract continues to persist for a further year. This is furthermore highlighted in Article 127(2), according to which the State is not cleared of any of its obligations that arose whilst a party to the statute nor its cooperation with the ICC in connection to investigations of any proceedings which are uncompleted at the time of the withdrawal.

From a contractual perspective however it seems contra to every rule in contract law to hold that even where a party no longer possesses the relevant intention to be bound by the contract, the contracting party is still bound to the entirety of the contract and if the party refuses to comply with its obligations, the fault lies in the defaulting party which has its own set of consequences. In relation to international law, even though African States may not intend to be bound any longer by the Rome Statute, these African States may be in default if they fail to comply with the Rome Statute. Here the breaches take the form of not complying with the States obligations erga omnes.

Privity of contract, another extremely important principle of contract law, requires that only those parties to the contract are bound to the contract and that obligations may only flow to those who are parties to the contract, no one else. On an inspection of the Rome Statute, the Rome Statute in essence binds those who were never a party to the contract or those who no longer intend to be a party to the contract. This is evident from Article 13(c) of the Statute, holding that prosecutions may be instituted at the instance of the prosecutor of the ICC, irrespective of whether the State is a party to the treaty or not. The prosecutor is required to have a reasonable basis to proceed with the prosecution and be authorised to do so by the Pre-Trial Chamber of the ICC. Thus the ICC is not prevented from having jurisdiction over States, which have withdrawn from the treaty or were never a party to the treaty. In terms of the Rome Statute, privity of contract has gone completely out the window. 

There are some counter-arguments that seem to take the form that such is a requirement in international law due to the jurisdiction of crimes over which the ICC holds, namely jus cogens crimes. However I posit that since international law is a consensual system that requires the consent of State parties, much in the same manner as a contract, it seems irrational for an International Court, whose entire existence is established through a treaty, to have jurisdiction over a state that never firstly possessed or secondly no longer possesses the intention to be bound to the jurisdiction of such a court.

In relation to the African withdrawal of the ICC, such may have the effect of leading to a potentially large scale institution of prosecutions against many African leaders within the time of their notification to no longer be bound to the Statute, which has already been witnessed and seems to be the main source of discontent by the African Union i.e. an unorthodox targeting of Africans by the ICC, or furthermore that even where the State is effectively no longer a party to the Statute such does not prevent the International Criminal Court from exercising jurisdiction over someone especially considering where such a prosecution or requirement of arrest has been made a resolution by the Security Council of the United Nations in terms of Article 25 of the UN Charter, a resolution that binds all members of the United Nations. 

However, the central legal implication of withdrawing from the treaty arises from an analysis of Article 12(3) of the Statute. Such an Article defines the court’s jurisdiction and states that such a jurisdiction is limited to the crimes of genocide, aggression, war crimes and crimes against humanity. Notably, as previously stated, all these crimes have attained the status of jus cogens, a set of commanding international law standards which no state may deviate or depart from. These standards (jus cogens) impose obligations upon states, called obligations erga omnes. Such obligations are termed obligations erga omnes as the term erga omnes is Latin meaning ‘towards all’ and thus such obligations that arise from jus cogens standards are owed to the international community as a whole. In relation to the crimes over which the ICC has jurisdiction, the obligations erga omnes that couple these jus cogens crimes, can be found in their relative Charters. Within each of these Charters, it imposes obligations on States to prevent and punish such crimes. For example, in terms of the crime of genocide, such a crime has attained the status of jus cogens, and the obligation erga omnes that couples such can be found in the Genocide Convention which requires a state to prevent and punish such a crime of genocide. Therefore a State is bound through their obligations erga omnes, to prevent and punish all such crimes over which the ICC holds jurisdiction, failing of which the state is in breach of these obligations erga omnes.

However according to Article 17(2), the ICC functions on the complementarity principle, which states that the ICC has jurisdiction in instances where the particular state is genuinely unwilling or unable to prosecute such a crime. This effectively provides the state with a “safety net” in the sense that if the state does not want to or is unable to prosecute the crime, due to a lack of the advanced nature of their legal system, that particular state is not said to have breached any obligations erga omnes. It is for this exact reason that many African states have become parties to the Rome Statute in order to prosecute such crimes, as a result of a lack of an advanced legal system present within their countries (although this may not be true for each and every African state). Therefore the ICC has provided these African states with a platform to prosecute such crimes, thus preventing breaches of their obligations erga omnes. 

The implication of a state withdrawing from the Rome Statue is that such a state is left vulnerable to breaching their obligations erga omnes in terms of these crimes, namely to prevent and punish. No longer does the state have a discretion on whether to prosecute or not, due to a lack of the complementarity principle, and are in all instances bound to prosecute. The failure of a state to prosecute, irrespective of the reason, will be a breach of their obligations erga omnes.

What then would be the repercussions for African states who have breached their obligations erga omnes? 

Article 40 of the Draft Articles on State Responsibility contemplates serious breaches of obligations under peremptory norms of international law and the wording of such an Article has two requirements that must be fulfilled in order to be utilised, the first is that there must be a breach of international law by not complying with ones international obligations, in the current instance, where African states do not prosecute such jus cogens crimes, this would be sufficient to constitute a breach of international law by not complying with their obligations owed to the international community. Secondly, the breach is required to be serious in nature. In the current instance it is unfathomable that such a breach is not serious in nature. The non-prosecution of jus cogens crimes such as genocide, war crimes or crimes against humanity are inexcusable and may seem to suggest a condonation of such if a state seeks not to prosecute such or where a state fails to prosecute such. Furthermore what is required by the relevant article is that such a failure to comply with ones obligations erga omnes must be gross and irregular i.e. that there is intent present on the part of the state. I therefore posit that such may be seen through African states intention to withdraw from the ICC whilst knowing that their relevant legal systems are unable to handle the prosecution of such crimes. Such actions demonstrate the intention to not prosecute these crimes, as these States knew of their inability to prosecute such crimes and persisted to withdraw from the ICC and thus such can be said to constitute the gross and irregular conduct contemplated in Article 40. 

Article 41 goes on to describe the consequences of a states serious breach of peremptory norms. Such states that all States are under a positive duty to bring an end to the serious breaches contemplated in Article 40. Such an article does not however prescribe what form the duty to bring an end to such must take and will depend on the circumstances but must in any event be lawful. I posit that such may take the form of rendering assistance in terms of the prosecution of such crimes, however such an article can only be said to be applicable ex post facto the failure to prosecute (Such constituting the breach of international law). It might well be for this exact reason that it is possible for the ICC to continue to exercise jurisdiction over such states. 

The question now becomes: Can Africa ever really escape the jurisdiction of the ICC? 

Since the ICC works on a complementarity principle, the principle that the court will only prosecute the crimes over which it has jurisdiction in those instances where is a state in unwilling or unable to prosecute the crimes, and since it has been established that even after a state is no longer a party to the ICC, the ICC continues to exercise jurisdiction over those states and those crimes, it seems that even when one has withdrawn from the ICC, one has not escaped the jurisdiction of the ICC, which would have been the entire purpose of withdrawing from the Rome Statute. The question for consideration is then whether it will be possible for Africa to ever escape the ICC’s jurisdiction? The answer to such lies in the complimentary principle itself, as if there was an institution which could prosecute all African crimes over which the ICC has jurisdiction, then the court would be unable to prosecute such as the complimentary principle would not enter into effect. Therefore I posit that the only way Africa can ever escape the jurisdiction of the ICC would be to establish an African Criminal Court. 

However, the possible benefits of African States ‘pulling out’ from the ICC are two fold. Firstly it provides states with the motivation required to improve their legal systems to cope with the prosecution of such crimes rather than the reliance on an international court as a “safety net”. Secondly, the possible creation of an African Criminal Court as contemplated above provides a greater legitimacy of that court in the eyes of African states and its establishment allows for a broader jurisdiction over crimes in comparison to the ICC. Despite the presence of such advantages, withdrawing from the ICC seems to be more detrimental than beneficial to these African states considering the possible breaches of their obligations erga omnes. 

The way forward

I therefore hold that the mass withdrawal of African states from the Rome Statute will lead to a possible multitude of eventual breaches of these States obligations erga omnes as a result of the inability of their legal systems, not necessarily all of them, to handle the prosecution of such crimes. I hope that if African states are destined on withdrawing, the African Union rapidly establishes a similar court to deal with such prosecutions in order to avoid these breaches of obligations erga omnes. A reformulation to the structure of the Rome Statute is also required as it seems to be out of touch with the basic principles of contract law through which many academics compare treaties to.