The African Union, the Security Council, and the International Criminal Court

Abstract

This chapter analyses the controversies surrounding the work of the African Union, the Security Council, and the International Criminal Court. It examines whether the legal justifications offered for the Security Council’s involvement in matters of international criminal justice, as administered by the ICC, match the emerging practice. The chapter reviews the drafting history of the Rome Statute to identify the initial benchmark against which to assess the Chapter VII referral and deferral resolutions and their impacts, if any, on the world’s only permanent international penal tribunal. The chapter situates the ICC within a new post-Cold War global paradigm that is not only concerned with ensuring the collective peace, which is the classical responsibility of the UN, but also ensures that international criminal justice is meted out to at least some of the leaders who foment the world’s worst atrocities.

What’s in a name? Contestation and backlash against international norms and institutions

“…The Council initially ignored this petition and then decided not to discuss it but only to ‘take note’ of it in its resolution 828 (UN Security Council, 2008). Outraged at this, the AU issued the so-called Sirte-declaration in response, requesting AU member states not to cooperate with the ICC regarding the arrest warrant on Sudan’s President, Omar al-Bashir (African Union, 2009; see also Jalloh, 2017: 204–206; Mills and Bloomfield, 2017: 10–11).…”

“…While none of these arguments could convince either the court, the assembly of state parties or the UNSC, contestation intensified further, beginning to portray the court as a post-colonial instrument of power by the West. The court was framed as an anti-African court, not guided by legal principles but merely by a Western desire to dominate (Du Plessis, 2010; Jalloh, 2017: 188). On the heyday of this line of contestation, several African states even initiated their withdrawal from the statute, including South Africa, the Gambia and Burundi.…”