African Union and BRICS: The Challenge of ICC International Warrant of Arrest
Bola A. Akinterinwa
The African Union (AU), from its name, is a union that was carved out from the Organisation of African Unity (OAU). The OAU seized to be an organisation for cooperation and unity of African countries to becoming a Union. It should be recalled that the declared objectives of the OAU were initially to promote the unity and solidarity of African states, to coordinate and intensify their cooperation, to defend their sovereignty and territorial integrity and independence and promote international cooperation.
In the way the European Economic Community (EEC) was restructured to become European Community (EC) and then to European Union (EU) following the 1993 Maastricht Treaty, the OAU was transformed to the African Union on 9-9-1999 when African leaders issued the Sirté Declaration establishing the African Union which now comprises 55 countries. The Union was officially launched in July 2002 in Durbar, South Africa.
The objectives of the African Union as provided in its Constitutive Act are more comprehensive than the 1963 OAU objectives. The AU vision is now to have ‘an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena.’ The AU wants to achieve greater unity and solidarity, accelerate the political and socio-economic integration of Africa, promote and defend Africa’s common positions, promote democratic principles and institutions, as well as good governance, promote research in all fields, and ensure the effective participation of women in decision-making, etc., in addition to the objectives of the OAU.
One objective that is relevant to our discussion here is the objective of promoting and defending African common positions on issues of interest to the continent and its peoples. The issue of international warrant of arrest being issued by the International Criminal Court (ICC) is one of the issues of interest to the Governments and Peoples of Africa. Several African leaders have been issued with international warrants of arrest or invited by the ICC. They include Charles Taylor of Liberia, Al-Bachir of Sudan, Laurent Gbagbo of the Côte d’Ivoire and Kenyan Deputy President, Mr William Ruto, Sylvestre Mudacumura, the head of a Rwandan rebel groups, the Congolese rebel leader, Bosco Ntaganda, etc. The official AU attitude towards the ICC policy of warrant of arrest is very clear at the level of Heads of State and not at the levels of non-state actors. The BRICS (Brazil, Russia, India, China and South Africa) similarly has the challenge of ICC’s warrant of arrest. This is the current case of Russian President Vladimir Putin.
Africa and ICC Warrants of Arrest
South Africa was first challenged by the case of President Omar Ahmad Al-Bashir and is again going to be more challenged by the case of President Putin if he attends the August 2023 BRICS summit holding in South Africa. President al-Bashir has been issued two warrants of arrest. The first warrant was issued on March 4, 2009 while the second warrant was issued on 12 July 2010. He is still at large as efforts made to accost him in South Africa have failed.
In other words, there cannot be any trial until he is arrested and taken to The Hague, the Seat of the Court. Unlike the International Court of Justice otherwise referred to as the World Court, which only deals with sovereign States, the ICC deals with individuals and the ICC cannot embark on his trial unless he is present at the courtroom in person. Besides, there is nothing like immunity for Heads of State before an international criminal court with authority, even if a state is not a signatory to the Rome Statute.
The Sudanese leader went to Jordan in March 2017 to participate in an Arab League summit and was expected to be arrested in Jordan because Jordan was a signatory to the Rome Statute. He was not arrested. The argument of Jordan was that Sudan was not a member of the ICC and that, at the time of the visit of President Al-Bashir to Jordan, the Government of Jordan said it had no obligation to arrest Al-Bashir because of his presidential status. However, the 5-man ICC Appeal Court was compelled to rule on 6th May, 2019 that the Government of Jordan had failed to meet its international legal obligations, indirectly raising the issue of disregard for the principle of sanctity of agreements.
President Al-Bashir was issued a warrant of arrest based on charges of genocide, crimes against humanity, and war crimes, particularly because of his roles in the counterinsurgency campaign in Darfur during which more than 300,000 deaths and millions of displaced people were recorded. What is noteworthy in this case is that the ICC appeal court made it clear that ‘no traditional principle of head-of-state immunity – which protects leaders on foreign soil from arrest – existed that was necessary to be waived.’ Besides, the appeal court also made it clear that both Sudan and Jordan have the obligation to arrest President Al-Bashir in light of the fact that both of them were signatories to the Convention on the Prevention and Punishment of the Crime of Genocide and that all signatories to the Convention were required to prevent and punish genocide.
Another point that is noteworthy is that it is not only Jordan and South Africa that have failed in meeting their international obligations. Al-Bashir has visited Uganda, Chad, Djibouti, and Malawi but he was never harassed or arrested. Even in his home country, Sudan, the transitional military government that succeeded has made it clear that it ‘would not hand al-Bashir over to face justice at the ICC, but could try him in Sudan.
And more interestingly is the case of South Africa and the apparent non-cooperative attitude of several African countries towards the ICC’s warrants of arrest on some people. Explained differently, the ICC Pre-Trial Chamber II has been compelled to refer on 11th July 2016 its decisions on the non-compliance by the Republic of Djibouti and by the Republic of Uganda with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council (UNSC) and the Assembly of the State Parties to the Rome Statute. Sudan and Uganda were required to provide submissions on their failure to arrest and surrender Omar Al-Bashir to the Court.
In South Africa, the Government prevented the prosecution of President Al-Bashir who went to Johannesburg, South Africa, in June 2015 to participate in an AU Summit. The ICC War Crimes judges have admitted that South Africa really flouted its duties to the ICC. The presiding judge, Cuno Tarfusser, said South Africa’s inaction was contrary to the Rome Statute and prevented it from prosecuting Al-Bashir on ten charges of war crimes, including three of genocide in Darfur.
Without doubt, South Africa had its reasons for not respecting the ICC provisions on international warrant of arrest. Pretoria’s lawyers made it clear at an April 2015 ICC hearing that ‘there was no duty under international law on South Africa to arrest Bashir.’ South Africa insisted that ‘there was nothing at all’ in the UN resolution to waive Bashir’s diplomatic immunity but the ICC prosecutor then, Julian Nicholls, responded that South Africa ‘had the ability to arrest and surrender him and it chose not to do so.’ Mr Nicholls was quite right but he missed completely the point being made by South Africa, which is a point of law: no enabling law to arrest and none to compel a waiver of presidential immunity.
Most interestingly but also disturbingly, the United Nations summoned South Africa to defend itself at the ICC. The Summon has been to no avail. In fact, Judge Tarfusser argued that referring the matter to the UNSC would be, at best, effectively futile since the Council had failed to act in six previous referrals over the Bashir case. The interesting and disturbing aspect of the UNSC inaction is the specific frustration of the ICC judges who expected the support of the UNSC but to no avail. If the ICC could not and still has not been able get Al Bashir arrested and taken to the Court in The Hague, which President in Africa will be freely willing to arrest the Russian President? The Amnesty International’s Netsanet Belay has summarised the problem neatly: ‘shocking that other states parties such as Jordan are also failing in their obligations to arrest Al-Bashir and this decision makes it clear that they do so in flagrant violation of international law.’
Undoubtedly, if Putin travels to any of the hostile Western countries, he can always be joyfully arrested and handed over. President Putin is not likely to make the mistake of travelling to Western Europe at this material time of the Russo-Ukrainian war. The issue of President Putin possibly participating in the next summit of the BRICS in August 2023 in South Africa was raised at the BRICS meeting of the Council of Ministers last week. President Putin has not openly said he would not be attending the summit in August. There is no reason why he should not attend, he still maintains.
As a result, South Africa was reported to have considered the possibility of shifting the venue of the meeting to China. There are reports that South Africa is considering withdrawing its membership of the ICC in light of the challenges being faced. Two points are noteworthy here. First, the ICC has made it clear that non-membership of the ICC does not mean that the international responsibility of a country cannot be called to question. In the case of Sudan, Sudan is not a party to the ICC but its leader is a criminal suspect. The problem in this case is that a non-member State of the ICC may not be compelled to implement an agreement to which it is not a party, especially if the request for arrest is based solely on the Rome Statute.
The argument of the need to also respect other agreements, like the Convention on the Prevention and Punishment of the Crime of Genocide to which South Africa might have subscribed, we believe that South Africa cannot be legally held responsible if the request for arrest is not based specifically on the Prevention and Punishment of the Crime of Genocide, which is quite different from the Rome Treaty. Put interrogatively, why is it that the United States is not favourably disposed to the trial of its soldiers by the ICC? The United States did not sign the Rome Statute. Should an agreement not signed by a sovereign state be imposed on it? In the event of imposition, can it be so done to a great power without consequences? Public commentators have drawn attention to alleged war crimes by the United States but heaven has not fallen? Can there really be one world of western values for the diverse peoples of the world? Whatever is the case, the ICC’s warrant of arrest is quite interesting to monitor.
Russia and ICC Warrant of Arrest
On 17 March 2023, the Pre-Trial Chamber of the ICC issued warrants of arrest for President Vladimir Vladimirovitch Putin who was born on 7 October 1952 and for Ms Maria Alekseyevna Lvova-Belova. President Putin was accused of responsibility for the war crime of unlawful transfer of children from occupied areas of Ukraine to Russia contrary to Articles 8(2)(a) (vii) and 8(2)(b)(viii) of the Rome Statute. Article 8(2)(a)(vii) defines a war crime ‘as grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention.
The acts are i) Wilful Killing; ii) Torture or inhuman treatment, including biological experiments; iii) Wilfully causing great suffering or serious injury to body or health; iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; vii) Unlawful deportation or transfer or unlawful confinement; and viii) Taking of hostages.
Article 8 (2)(b) defines ‘other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law. In this regard, Article 8 (2)(b)(viii) includes the other serious violations as ‘the transfer, directly or indirectly by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.’ In both references, Russian President is specifically being accused of unlawful deportation or transfer or unlawful confinement of Ukrainian children.
As noted in a press release issued on 17 March 2023 by the ICC, there are reasonable grounds to believe that Mr Putin bears individual criminal responsibility ‘for having committed the acts directly, jointly with others and/or through others (Article 25(3)(a) of the Rome Statute’ and ‘for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (Article 28(b) of the Rome Statute.
True, Article 25(3), which defines individual criminal responsibility, says in its paragraph 3(a) that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ‘commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible. And perhaps more noteworthy, Article 25 (3)(b) says if a person ‘orders, solicits, or indices the commission of such a crime which in fact occurs or is attempted.
Efforts at nailing down President Putin are further helped by Article 28(b) which provides that ‘… a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where the superior knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes,’ or where ‘the crimes concerned activities that were within the effective responsibility and control of the superior…’ From the foregoing, there is no disputing the fact that the Russian leader really has a case to answer. But does Russia of Vladimir Putin accept the Western conception of international law?
In the case of Ms Maris Lvova, the ICC allegations are not different from those levied against President Putin. The ICC consideration was simply that Ms Lvova, born on 25 October 1984, is the Commissioner for Children’s Right in the Office of the Russian President. She was accused of responsibility for unlawful deportation of population (children) from the occupied areas of Ukraine. If Ms Lvova has been specifically indicted because she is the Commissioner for Children’s Rights, it cannot but be very difficult for her to have either been physically present in the forceful deportation of the Ukrainian or in terms of policy-making. Whatever is her role, it is President Putin that is internationally targeted. But can he be successfully targeted? Can he be arrested in South Africa? Who will arrest him?
If President Putin dies by accident or naturally before the execution of ICC’s international warrant of arrest, does it imply an automatic end to the Russo-Ukrainian war? Put differently, will the other comrades of his not continue to sustain the Russian war objective? And perhaps most importantly, does the NATO believe that, in the absence of Vladimir Putin, the Russian military can be easily dispensed with? These questions are necessary in light of the United States’ observation that the Russian-Ukraine war has clearly shown the weaknesses of the Russian military.
In the thinking of the Americans, Russia invaded Ukraine with the objective or assumption that Ukraine would be quickly subdued. This assumption unnecessarily ignores the fact that Ukraine has been able to effectively resist the invasion thanks to the NATO and the European Union’s support for Ukraine. In fact, the Americans and their allies also ignore the fact that Ukraine has suffered more losses and destruction than Russia even if Russians have not succeeded in bringing the Ukrainians to their knees. It is against this background that the challenges of the ICC’s international warrant of arrest for President Putin should be further investigated.
One critical challenge with which the ICC is faced is not simply the non-reaction of the UNSC to the ICC referrals sent to the UNSC and the frustrations of the ICC judges but the increasing disagreement and non-preparedness of many countries to comply with the obligations created by the Rome Statute. African leaders have raised questions about ICC warrants of arrest targeting mainly African leaders. In the eyes of Africa, this is discrimination. They made it clear that they do not accept the arrest and trial of any sitting president in Africa by the ICC. Now, for the first time, an international warrant of arrest has been placed on an Eastern European leader, Vladimir Putin of Russia. If Omar Al-Bashir has visited many countries in spite of the warrants of arrest placed on him in 2009 and 2010, if he has not been arrested and handed over to the ICC, which African country will arrest President Putin in Africa? True, the AU frowns at the arrest of a sitting President. Even if China were to play host to the August 2023 BRICS summit, is it China that will arrest Putin and hand him over to the ICC? Can Putin be arrested without its global consequences? Is it possible to have one world of Western values only? In whose interests will a weakened Russia be? More importantly, will the arrest of Putin put an end to the Russian special military intervention in Ukraine? Western European countries must begin to learn how to make haste slowly in their ICC agenda. They should allow trouble to sleep quietly in its room. If not, Europe may suffer a great deal and for a long time to come from its error of terror being put in place.
