Our ISS position paper on the competing obligations on African ICC states parties in respect of the arrest and surrender of President al-Bashir was launched on the sidelines of the ASP and is available for download here. The following is a précis of the the paper:
The fulcrum of African states’ discontent with the International Criminal Court (ICC) was the arrest warrant issued for
President Omar al-Bashir of Sudan in 2009. In response, the African Union (AU)
has taken a number of measures, the most controversial of which are the
decisions that African states will not cooperate in the arrest and surrender of
Bashir. For African countries that are ICC members, these decisions present
particular legal challenges: on the one hand, states parties are obliged under
the ICC’s Rome Statute to cooperate fully with the court; on the other, the AU’s
Constitutive Act warns that the failure of a member state to comply with AU
decisions may result in sanctions being imposed. After interrogating the legal
aspects of these competing obligations, this paper delineates the international
obligations on African states in respect of Bashir, considers the obligations on
African states parties in respect of AU decisions, and presents two possible
means of resolving the apparent conflict between commitments to the ICC and the
AU.
The position paper was made possible through the support of the Open Society
Foundation of South Africa (OSF-SA), and the governments of the Netherlands and
Norway. In addition, general ISS funding is also provided by the governments of
Sweden and Denmark.