ICC Forum

A Single Comment — Permalink

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 decision to not arrest or surrender Al Bashir in accordance with an ICC order does not override or suspend existing obligations of ICC States Parties under the Rome Statute. Therefore, ICC States Parties are obligated to cooperate with the ICC.

The African Union (“AU”) has the legal competence to require AU members to not cooperate with the International Criminal Court (“ICC”) under Article 9(g) (“The functions of the Assembly shall be to…give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace”) and Article 23(2) (“any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions”) of the Constitutive Act of the African Union.1

However, for States Parties to the Rome Statute of the International Criminal Court (“Rome Statute”), the AU decision to not cooperate with the ICC2 does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute.3 Although Article 98 of the Rome Statute prevents the ICC from requesting assistance for arrest or surrender when it would require a state to act inconsistently with its obligations under international law,4 these obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC. Otherwise, any ICC request for cooperation can be sidestepped by artificially creating a new international obligation which is inconsistent with that request. Thus, for States Parties to the Rome Statute, compliance with the AU decision constitutes a material breach of the Rome Statute. In fact, only the Security Council can defer the investigation or prosecution in accordance with Article 16 of the Rome Statute.5

Moreover, the Vienna Convention on the Law of Treaties (“VCLT”) prohibits compliance with the AU decision if it would be incompatible with compliance with the Rome Statute.6 Under Article 18 of the VCLT, “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound by the treaty.”7 ICC States Parties have consented to be bound by the Rome Statute. The object and purpose of the Rome Statute is “to put an end to impunity.”8 However, by complying with the AU decision and giving it priority, ICC States Parties are protecting rather than bringing Al Bashir to justice. Thus, ICC States Parties that refuse to comply with the Rome Statute are thereby breaching their obligations under it.

Expand

In addition, under Article 41 of the VCLT:

“[T]wo or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: the possibility of such a modification is provided for by the treaty; or the modification in question is not prohibited by the treaty and…does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.”9

In other words, two or more parties to a multilateral treaty cannot agree to modify the treaty as between themselves alone unless the treaty provides for such a possibility, or the treaty does not prohibit the modification and the modification is not incompatible with the object and purpose of the treaty. Here, because the AU decision not only addresses the same subject-matter as the Rome Statute, but alters state obligations under it, the AU decision amounts to a modification of the Rome Statute. Thus, Article 41 of the VCLT applies. However, the Rome Statute does not provide for the possibility of two or more parties agreeing to modify the treaty as between themselves alone.10 Moreover, even if the Rome Statute did provide for such a possibility, the modification called for by the AU decision is incompatible with the object and purpose of the treaty (as explained in the paragraph above).11 As a result, Article 41 of the VCLT prohibits AU members who are also ICC States Parties from modifying their obligations under Article 89 of the Rome Statute as between themselves alone. Therefore, compliance with the ICC’s requests for arrest or surrender is still binding under the Rome Statute.

An alternative understanding of the AU decision as it relates to ICC States Parties’ obligations under the Rome Statute can be found by way of analogy to methods of statutory interpretation. Considering the Rome Statute as a statute, “the primary technique of interpretation…is textual.”12 This method of statutory interpretation is codified under Article 31 of the VCLT, which says: “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object or purpose.”13 In other words, the plain meaning of the text of the Rome Statute is the primary evidence of the intent and purpose of the statute. Using this method of interpretation, Article 89 of the Rome Statute is explicit: “States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with [the ICC’s] requests for arrest and surrender.”14 Thus, the primary meaning and legislative intent of Article 89 indicate that ICC States Parties must comply with requests by the ICC for arrests and surrender. If this is true, then the AU decision to not cooperate is in violation of Article 89 and is therefore not binding as a matter of international law (unlike the Rome Statute, which is still binding on all ICC States Parties).

Lastly, another way of understanding the AU decision and the Rome Statute is by way of analogy to contracts between private parties. Considering the AU decision and the Rome Statute as contracts between states, Article 60 of the VCLT is particularly relevant here: “A material breach of a treaty, for the purposes of this article, consists in: a repudiation of the treaty not sanctioned by the [VCLT]; or a violation of a provision essential to the accomplishment of the object or purpose of the treaty.”15 In other words, where there are two successive conflicting contracts, there are two relevant inquiries to determine whether there is a material breach of the first contract. First, making a second contract constitutes some form of repudiation of the first contract when the first contract has terms that are inconsistent with the formation of the second contract.16 Here, the AU decision constitutes a repudiation of the Rome Statute because the AU decision calls its members to not arrest or surrender Al Bashir even though the Rome Statute requires it. Second, the formation of the second contract constitutes a material breach of the first contract where the second contract frustrates the purpose of the first contract, regardless of whether or not they seem to relate to the same subject-matter.17 Here, the AU decision is incompatible with the object and purpose of the Rome Statute (as explained above in paragraph III), and so it can certainly be said to frustrate the purpose of the Rome State.18 Thus, using either inquiry, the AU decision constitutes a material breach of the Rome Statute.

In conclusion, whether under the VCLT or by analogy to statute or contract, the AU decision is not a valid basis for refusing to arrest or surrender Al Bashir in accordance with the ICC’s request. Therefore, AU members who are also States Parties to the Rome Statute are obligated to cooperate with the ICC.19

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

  1. 1.

    Constitutive Act of the African Union, July 11, 2000, O.A.U. Doc. No. CAB/LEG/23.15, available online. ↩

  2. 2.

    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 [hereinafter “AU decision”]. ↩

  3. 3.

    Rome Statute of the International Criminal Court, art. 89, U.N. Doc. A/CONF.183/9 (1998) (entered into force July 1, 2002) (stating “States Parties shall…comply with [the ICC’s] requests for arrest and surrender”). ↩

  4. 4.

    Id. at art. 98. ↩

  5. 5.

    Id. at art. 16. ↩

  6. 6.

    Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, available online. ↩

  7. 7.

    Id. at art. 18. ↩

  8. 8.

    Rome Statute, supra note 3, at preamble. ↩

  9. 9.

    Vienna Convention on the Law of Treaties, supra note 6, at art. 41. ↩

  10. 10.

    Rome Statute, supra note 3. ↩

  11. 11.

    Id. at preamble. ↩

  12. 12.

    Christopher J. Borgen, Resolving Treaty Conflicts, 37 Geo. Wash. Int’l L. Rev. 573, 632 (2005). ↩

  13. 13.

    Vienna Convention on the Law of Treaties, supra note 6, at art. 31. ↩

  14. 14.

    Rome Statute, supra note 3, at art. 89. ↩

  15. 15.

    Vienna Convention on the Law of Treaties, supra note 6, at art. 60. ↩

  16. 16.

    Borgen, supra note 12, at 624. ↩

  17. 17.

    Id. at 633. ↩

  18. 18.

    Rome Statute, supra note 3, at preamble. ↩

  19. 19.

    However, it must be noted that the doctrine of immunity from arrest might provide an independent basis under other international law principles for AU members to refuse to cooperate with the ICC, but this is a different issue that will not be addressed here. ↩

Collapse