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Comment on the Darfur Question: “What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?”

The AU Resolution establishes that AU Member States “shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.”1 The passage of the Resolution on 3 July 2009 has led to arguments that Member States of the AU can ignore the Rome Statute. These arguments are based on the notion that States can simply withdraw from their obligations under a treaty by subsequently entering into new legal commitments which defeat the purposes of the treaty.

This essay considers the effect of the AU Resolution on African States’ obligation to apply the Rome Statute. It will be argued that the Resolution does not affect the binding character of the Statute. Part 1 examines the most important provisions of the Statute and draws attention to its objects. Part 2 explains the meaning of the pacta sunt servanda principle and considers the application of the Vienna Convention on the Law of Treaties (‘Vienna Convention’) in international law.2 Part 3 concludes.

Part 1: The Rome Statute of the International Criminal Court

According to the Rome Statute, State Parties have a general obligation to comply with the provisions of the Statute. Thus, Article 86 of the Rome Statute states that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”3 This obligation flows directly from the ratification of the Statute. By ratifying the Statute, States consented to be bound by all its terms and provisions.

Article 87 grants the ICC the authority to make requests to State Parties for cooperation. The Statute specifies some forms of cooperation such as: the identification and whereabouts of persons; the taking of evidence and production of evidence to the Court; the questioning of any persons being prosecuted; and the arrest and surrender of persons.

Articles 89(1), 90, 91 and 92 are closely related. The provisions deal with requests for arrest and surrender of suspects. According to Article 89(1), State Parties “shall … comply with requests for arrest and surrender.”4 Where there are competing requests for extradition, State Parties must apply Article 90 and give priority to the ICC’s request in certain circumstances. Article 91 specifies detailed requirements for the contents of a request for arrest and surrender, whereas Article 92 sets out States’ obligations with respect to provisional requests.

Under Article 87(7) the Court has the power to refer a matter to the Assembly of State Parties, or the Security Council, where a State Party fails to comply with a request to cooperate contrary to the provisions of the Statute.

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The objects of the Rome Statute are stated in the Preamble to the Statute. According to Article 31(2) of the Vienna Convention, the preamble of a treaty is to be considered as part of the context for the purpose of the interpretation of the treaty. The Preamble to the Rome Statute recognizes that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”5 Further, it provides that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”6

Part 2: Observance of Treaties

The decision of the AU not to cooperate with the ICC defeats the objects and purposes of the Rome Statute. There is clear inconsistency between the AU Resolution and the Statute. African States cannot comply with both instruments. Although the AU Resolution may have been validly enacted pursuant to Article 9(g) of the Constitutive Act of the African Union, the passage of the Resolution does not override the Rome Statute.7

A fundamental principle of customary law is that treaties must be observed. This is known as the so-called pacta sunt servanda principle. The words pacta sunt servanda mean that “promises shall be kept.” Article 26 of the Vienna Convention codifies this principle and emphasizes the importance of the sanctity of treaties. It states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”8 The third paragraph of the Preamble of the Vienna Convention also expressively refers to the principle, noting that “the principles of free consent and good faith and the pacta sunt servanda rule are universally recognized.”9 This is primarily designed to ensure predictability in international law: States cannot renege upon their obligations under a treaty and must refrain from any acts which would frustrate the objects of the treaty.10

Article 18 of the Vienna Convention reiterates this principle, stating that:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.11

Even though Article 18 refers to acts which are undertaken prior to the entry into a treaty, the basic obligation to refrain from acts which defeat the purposes of a treaty continues to have meaningful force after the adoption of a treaty. This is a universally applicable rule under customary law, extending to all treaties and prevailing throughout the life of a treaty

In more concrete terms, the requirement to perform a treaty in good faith means that treaty rights and obligations are put in effect. The ICJ has interpreted good faith in the context of Article 26 to mean that it “obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.”12 Thus, treaty parties must observe their obligations in the spirit of the treaty as well as according to the letter.13

The AU Resolution is contrary to the basic principles of pacta sunt servanda. It purports to unduly curtail States’ freedom to execute their treaty obligations under the Rome Statute in good faith. This constitutes a blatant violation of Article 26.

Moreover, according to Article 27 of the Vienna Convention, treaty parties cannot invoke the provisions of their internal law to justify their failure to perform the treaty. Article 27 may be viewed as a further expression of the pacta sunt servanda principle. This essentially means that on the “international level international law is supreme.”14 The application of Article 27 necessarily leads to the conclusion that African States are precluded from arguing that the AU Resolution has become part of their internal law and thus exonerates them from the provisions of the Rome Statute.

Part 3: Conclusion

According to the Vienna Convention, African State Parties to the Rome Statute are required to observe the pacta sunt servanda principle. The AU Resolution is aimed at limiting the reach of the ICC’s jurisdiction in the wider African region and flows from a misinterpretation of the Rome Statute. As such, the Resolution is incompatible with the objects and purposes of the Statute, and poses a threat to the legitimacy of the ICC. This essay has demonstrated that African States are, as a matter of international law, not entitled to withdraw from their obligations under the Rome Statute and cannot raise the AU Resolution as a defence to their breach of these obligations. The African Union has no right to interfere with the operation of the Statute and cannot shield Al Bashir from prosecution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Decisions and Declarations, Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009), available online (accessed at 11 January 2011). ↩

  2. 2.

    Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, available online (accessed at 11 January 2011). ↩

  3. 3.

    Rome Statute of the International Criminal Court, art. 86, U.N. Doc. A/CONF.183/9 (1998) (entered into force July 1, 2002) ↩

  4. 4.

    Id. at art. 89(1). ↩

  5. 5.

    Id. at preamble. ↩

  6. 6.

    Id. at preamble. ↩

  7. 7.

    Constitutive Act of the African Union, July 11, 2000, O.A.U. Doc. No. CAB/LEG/23.15, available online (accessed at 11 January 2011). ↩

  8. 8.

    Vienna Convention on the Law of Treaties, supra note 2, at art. 26. ↩

  9. 9.

    Id. at preamble. ↩

  10. 10.

    Waldock, Third Report on the Law of Treaties [1964] Yearbook of the ICL, vol II, p 7. ↩

  11. 11.

    Vienna Convention on the Law of Treaties, supra note 2, at art. 18. ↩

  12. 12.

    Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, 79 ↩

  13. 13.

    Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 367. ↩

  14. 14.

    Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 375. ↩

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