1 This article draws heavily from a non-public briefing paper on challenges in Africa regarding the ICC drafted by the author (on file with Human Rights Watch) and portions of Human Rights Watch “Human Rights Watch memorandum for the ninth session of the International Criminal Court Assembly of States Parties” (November 2010), available at: <http://www.hrw.org/news/2010/11/16/human-rights-watch-memorandum-ninth-session-international-criminal-court-assembly-st> (last accessed 30 September 2011).

2 The ICC opened an investigation into crimes committed in Darfur in June 2005, following a UN Security Council referral of the situation in Darfur to the court in March 2005: UN Security Council res 1593 (2005), S/RES/1593 (2005). The ICC issued its first arrest warrant for President al-Bashir in March 2009 on charges of war crimes and crimes against humanity committed in Darfur. A second warrant was issued in July 2010, adding genocide charges. For information on the ICC's cases involving crimes committed in Darfur, see ICC “Darfur, Sudan”, available at: <http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0205/> (last accessed 30 September 2011).

3 The AU's decision does not provide specific examples of statements made by the prosecutor that it viewed as problematic. See AU Assembly “Decision on the progress report of the Commission on the implementation of decision Assembly/AU/Dec.270 (XIV) on the second ministerial meeting on the Rome Statute of the International Criminal Court (ICC): Doc.Assembly/AU/10 (XV)” in Decisions, Declarations, Resolution of the 15th ordinary session of the AU Assembly: Assembly/AU/Dec.296 (XV) (Kampala, July 2010) 24 at paras 5, 8 and 9, available at: <http://www.au.int/en/sites/default/files/ASSEMBLY_EN_25_27_July_2010_BCP_ASSEMBLY_OF_THE_AFRICAN_UNION_Fifteenth_Ordinary_Session.pdf> (last accessed 30 September 2011).

4 Rome Statute of the International Criminal Court (Rome Statute): UN doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002) at part 9, available at: <http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf> (last accessed 30 September 2011).

5 AU Assembly “Decision on the meeting of African states parties to the Rome Statute of the International Criminal Court (ICC) – Doc.Assembly/AU/13(XIII)” in Decisions and Declarations of the 13th ordinary session of the AU Assembly: Assembly/AU/Dec.245 (XIII) (Sirte, July 2009) 7 at para 10, available at: <http://www.au.int/en/sites/default/files/ASSEMBLY_EN_1_3_JULY_2009_AUC_THIRTEENTH_ORDINARY_SESSION_DECISIONS_DECLARATIONS_%20MESSAGE_CONGRATULATIONS_MOTION_0.pdf> (last accessed 30 September 2011).

6 This is not the first time the AU has raised concerns over the prosecutor's conduct, but the language is more provocative than previously. See, for example, id at para 11.

7 See The Prosecutor v Omar Hassan Ahmad Al Bashir ICC case no ICC-02/05-01/09, “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir's recent visit to the Republic of Chad” (27 August 2010), available at: <http://www.icc-cpi.int/iccdocs/doc/doc931075.pdf> (last accessed 30 September 2011).

8 Ibid.

9 See, for example, “Bashir defies warrant on Chad trip” (22 July 2010) AlJazeera, available at: <http://english.aljazeera.net/news/africa/2010/07/201072183438656172.html> (last accessed 8 August 2011).

10 For a detailed discussion of backlash against the ICC in Africa following the prosecutor's request for the warrant, see C Jalloh “Regionalizing International Criminal Law?” (2009 University of Pittsburgh legal studies research paper no 2009–20, 1 July 2009) 9 International Criminal Law Review 445.

11 Civil society telephone, email and in-person exchanges with diplomats (July and August 2010) (details on file with the author). See also B Malone “African nations divided over Bashir genocide charge” (25 July 2010) Reuters, available at: <http://uk.reuters.com/article/2010/07/25/idUKLDE66O0CF._CH_.2420> (last accessed 16 September 2010).

12 In addition, positive exchanges at the summit between ICC states parties and non-states parties are not well-reflected in the final text of the decision. See civil society telephone, email, and in-person exchanges, ibid.

13 Art 23 of the Constitutive Act of the AU discusses sanctions: “The Assembly shall determine the appropriate sanctions to be imposed on any Member State that defaults in the payment of its contributions to the budget of the Union in the following manner: denial of the right to speak at meetings, to vote, to present candidates for any position or post within the Union or to benefit from any activity or commitments, therefrom … Furthermore, any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly”: OAU doc CAB/LEG/23.15 (11 July 2000, entered into force 26 May 2001), available at <http://www.africa-union.org/root/au/AboutAu/Constitutive_Act_en.htm> (last accessed 30 September 2011).

14 Civil society telephone, email, and in-person exchanges, above at note 11.

15 Botswana Press Agency “Botswana stands by the International Criminal Court” (28 July 2010), available at: <http://www.gov.bw/en/News/Botswana-stands-by-the-International-Criminal-Court-/> (last accessed 22 September 2010).

16 S Kwinika “Sudan President Bashir, accused of war crimes, would be arrested in South Africa, says ANC” (28 July 2010) The Christian Science Monitor, available at: <http://www.csmonitor.com/World/Africa/Africa-Monitor/2010/0728/Sudan-President-Bashir-accused-of-war-crimes-would-be-arrested-in-South-Africa-says-ANC> (last accessed 16 September 2010); South African Government Information “Notes following the briefing of Department of International Relations and Co-operation's Director-General, Ayanda Ntsaluba” (31 July 2009), available at: <http://www.info.gov.za/speeches/2009/09073110451001.htm> (last accessed 23 September 2010).

17 P Opiyo “Raila slams Bashir invitation” (30 August 2010) The Standard, available at: <http://www.standardmedia.co.ke/archives/InsidePage.php?id=2000017133&cid=4> (last accessed 16 September 2010); S Otieno and I Lucheli “How Bashir was sneaked into Kenya” (28 August 2010) The Standard, available at: <http://www.standardmedia.co.ke/archives/news/InsidePage.php?id=2000017088&cid=4&> (last accessed 2 September 2010).

18 P Clottey “Kenyan lawmaker to demand answers about Sudan leader's visit” (30 August 2010) Voice of America, available at: <http://www.voanews.com/english/news/africa/Kenyan-Lawmaker-to-Demand-Answers-about-Sudan-Leaders-Visit-101842203.html> (last accessed 16 September 2010); See P Leftie and K Kelly “Storm over al-Bashir's surprise visit” (28 August 2010) Daily Nation, available at: <http://www.nation.co.ke/Kenya%20Referendum/Storm%20over%20al%20Bashir%20/-/926046/998960/-/69nwjj/-/index.html> (last accessed 23 September 2010).

19 See, for example, C Muthoga “Bashir's furtive visit to Kenya was a display of incompetent foreign policy” (September 2010) The East African (on file with the author); Kenyans for Peace Truth and Justice “President Bashir's presence at promulgation ceremony a show of impunity by the executive” (27 August 2010), available at: <http://www.iccnow.org/documents/KPTJ_statement_on_bashir1.pdf> (last accessed 30 September 2011); “Government erred in inviting Al-Bashir” (29 August 2010) Daily Nation, available at: <http://www.nation.co.ke/oped/Editorial/Government%20erred%20in%20inviting%20Al%20Bashir%20/-/440804/999272/-/l12tqj/-/index.html> (last accessed 7 October 2010); comments posted to W Menya “Bashir surprise guest in Kenya” (27 August 2010) Daily Nation, available at: <http://www.nation.co.ke/News/Bashir%20surprise%20guest%20in%20Kenya/-/1056/998008/-/w03i5sz/-/index.html> (last accessed 7 October 2010).

20 T-A Tekle “Sudan's Bashir arrives in Ethiopia for IGAD summit” (23 November 2010) Sudan Tribune, available at: <http://www.sudantribune.com/Sudan-s-Bashir-arrives-in-Ethiopia,37022> (last accessed 5 August 2011).

21 See “Arrest Bashir, rights group tells Kenya” (22 October 2010) The East African, available at: <http://www.theeastafrican.co.ke/news/-/2558/1038056/-/ongh16z/-/> (last accessed 8 November 2010); A Ryu “Human rights groups to Kenya: Arrest al-Bashir” (22 October 2010) Voice of America News, available at: <http://www.voanews.com/english/news/africa/east/Human-Rights-Groups-to-Kenya–Arrest-al-Bashir–105533033.html> (last accessed 8 November 2010); Human Rights Watch “Civil society concerned over possible return visit by President Omar al-Bashir” (letter to President Mwai Kibaki, Kenya, 20 October 2010), available at: <http://www.hrw.org/node/93796> (last accessed 30 September 2011); letter to President Mwai Kibaki signed by the Kenyan Section of the International Commission of Jurists (19 October 2010), available at: <http://www.icj-kenya.org/dmdocuments/letters/Letter%20to%20President%20Kibaki%20final.pdf> (last accessed 30 September 2011).

22 See, for example: “AU chief chides ICC prosecutor” (23 July 2010) News24.com, available at: <http://www.news24.com/Africa/News/AU-chief-chides-ICC-prosecutor-20100723> (last accessed 28 September 2010); F Rabkin “Africa: World court faces charge of ‘judicial imperialism’” (23 July 2010) AllAfrica.com, available at: <http://allafrica.com/stories/201007230728.html> (last accessed 28 September 2010); “Gaddafi elected AU head, union backs Sudan in critique of ICC” (2 February 2009) Radio France Internationale, available at: <http://www.rfi.fr/actuen/articles/110/article_2786.asp> (last accessed 28 September 2010).

23 See Human Rights Watch “ICC: Prosecutor to open an investigation in Libya” (questions and answers document, 3 March 2011) at Q 10, available at: <http://www.hrw.org/news/2011/03/03/icc-prosecutor-open-investigation-libya> (last accessed 30 September 2011); Coalition for the ICC “Africa and the International Criminal Court” (fact sheet), available at: <http://www.iccnow.org/documents/Africa_and_the_ICC.pdf> (last accessed 7 October 2010); International Center for Transitional Justice “Protecting the mission and mandate of the International Criminal Court” (briefing paper, 3–6 November 2009), available at: <http://www.coalitionfortheicc.org/documents/Briefing_AU_ICCReview.pdf> (last accessed 30 September 2011). A decision by the ICC's judges on the prosecutor's request regarding Côte d'Ivoire was pending at the time of writing.

24 Much of the problem relates to the UN Security Council's role in establishing international war crimes tribunals, and the ability of its permanent members to quash accountability efforts they do not support. The ICC was created by a multilateral treaty rather than a Security Council resolution, but there are other limits to its jurisdiction. Some of the worst crimes perpetrated since 2002 have been committed in states that are not parties to the court and are thus outside the court's jurisdiction, including Sri Lanka, Burma and Iraq.

25 Efforts should include pressing for the investigation of relevant crimes wherever they are committed, and broader ratification of the Rome Statute.

26 See Coalition for the ICC “Africa and the International Criminal Court”, above at note 23.

27 This conference was organized for the ICC states parties to consider amendments to the statute. See Rome Statute, art 123.

28 For example, the Tanzanian president said, “[i]t is imperative that States Parties … fully support the Court to bring justice to … victims”, and the Central African Republic justice minister indicated his government, “seizes the opportunity … to reiterate … support for the International Criminal Court and faith in its mission”. The Nigerian attorney general and justice minister pledged that Nigeria would “do everything possible to ensure full implementation of the Statute in Nigeria”, and the Namibian justice minister indicated that Namibia “fully supports the Court's work in promoting cooperation with the ICC”. In each case, see ICC “General debate: Review conference 31 May – 1 June 2010”, translation from French of Central African Republic statement by Human Rights Watch, available at: <http://www.icc-cpi.int/Menus/ASP/ReviewConference/GENERAL+DEBATE+_+Review+Conference.htm> (last accessed 10 October 2011).

29 See ICC “Review conference of the Rome Statute: Kampala, 31 May − 11 June 2010”: RC-9-ENG-15072010 (15 July 2010), available at: <http://www.icc-cpi.int/NR/rdonlyres/18B88265-BC63-4DFF-BE56-903F2062B797/0/RC9ENGFRASPA.pdf> (last accessed 30 September 2011). In addition, several African states appear to be involved in current efforts to develop domestic legislation to implement the Rome Statute.

30 AU “Report of the meeting of African states parties to the Rome Statute of the International Criminal Court” (Addis Ababa, 8–9 June 2009): MinICC/Rpt at para 15(v) (on file with the author); letter from the Kenyan attorney general to the AU Commission chairperson (3 June 2010), available at: <http://www.coalitionfortheicc.org/documents/AULO-African_SPs_Letter.pdf> (last accessed 30 September 2011).

31 See, for example, Kenyan section of the International Commission of Jurists “African civil society urges African states parties to the Rome Statute to reaffirm their commitment” (30 July 2009), available at: <http://www.icj-kenya.org/index.php?option=com_content&view=article&id=267:african-civil-society-urges-african-states-parties-to-the-rome-statute-to-reaffirm-their-comm> (last accessed 10 October 2011); Human Rights Watch “Civil society declaration on Africa and the review conference of the Rome Statute of the International Criminal Court” (news release, 24 May 2010), available at: <http://www.hrw.org/node/90620> (last accessed 30 September 2011); International Center for Transitional Justice “Protecting the mission and mandate of the ICC”, above at note 23.

32 Specifically, the July 2009 AU decision on the ICC states that the AU “[d]eeply regrets that the request by the African Union to the UN Security Council to defer the proceedings initiated against President Bashir … has neither been heard nor acted upon … Decides that in view of the fact that the request by the African Union has never been acted upon, the 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”: AU Assembly “Decision on the meeting of African States Parties to the Rome Statute”, above at note 5 (emphasis added). See also AU Assembly “Decision on the progress report of the Commission”, above at note 3 at paras 4 and 5; AU Peace and Security Council “Communiqué of the 142nd meeting of the Peace and Security Council”: PSC/MIN/Comm (CXLII) (Addis Ababa, 21 July 2008), available at: <http://www.africa-union.org/root/ua/actualites/2008/juillet/psc/142-communique-eng.pdf> (last accessed 30 September 2011).

33 AU “Report of the meeting of African states parties”, above at note 30, at para 18 (R6).

34 UN Security Council res 1828 (2008): S/RES/1828 (2008) at preambular para: “Taking note of the African Union (AU) communiqué of the 142nd Peace and Security Council (PSC) Meeting dated 21 July (S/2008/481, annex), having in mind concerns raised by members of the Council regarding potential developments subsequent to the application by the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these matters further” (emphasis original).

35 In particular, the Russian government indicated that a deferral was not possible at the time “as a result of resistance by a number of Security Council members”. The Libyan government similarly stated, “[d]espite all the reasons that we put forward to justify our proposed amendments to the draft resolution [in favour of deferral], we did not receive the hoped-for response from certain Council members”: UN Security Council 5947th meeting, S/PV.5947 (31 July 2008).

36 There are indications that the council discussed the deferral request informally on other occasions, including in a meeting with AU officials during a Security Council visit to Addis Ababa in May 2009: Human Rights Watch email exchanges with Security Council report analyst (16 September and 7 October 2010) (on file with the author).

37 See Kenyan Ministry of Foreign Affairs “Kenya's response to the decision of the pre-trial chamber informing the UN Security Council and the Assembly of States Parties to the Rome Statute about the presence of President Omar Hassan al-Bashir of the Sudan in the territory of the republic of Kenya” (aide memoire attached to letter from Thuita Mwangi, permanent secretary in the Kenyan government, to all heads of mission and heads of division concerning government statement on the presence of President Omar al-Bashir, 29 August 2010) at para 4 (on file with the author); AU “Press release on the decision of the pre-trial chamber of the ICC informing the UN Security Council and the Assembly of the States Parties to the Rome Statute about the presence of President Omar Hassan al-Bashir of the Sudan in the territories of the Republic of Chad and the Republic of Kenya” (press release, 29 August 2010), available at: <http://appablog.wordpress.com/2010/08/29/african-union-commission-press-release-on-the-decision-of-the-pre-trial-chamber-of-the-icc-informing-the-un-security-council-and-the-assembly-of-the-state-parties-to-the-rome-statute-about-the-prese/> (last accessed 2 June 2011).

38 These arguments include that obligations related to a decision of a regional organization do not trump those that flow from a multilateral treaty, and that concern on the part of ICC states parties over implementing their obligation to cooperate with the court is not a basis for disregarding arrest warrants, but may be raised directly with the ICC consistent with art 97 of the court's statute.

39 AU Assembly “Decision on the progress report of the Commission”, above at note 3 at para 6.

40 See Kenyan Ministry of Foreign Affairs “Kenya's response to the decision of the pre-trial chamber”, above at note 37; “Kenya: Bashir visit ‘in our interest’” (29 August 2010) News24.com, available at: <http://www.news24.com/Africa/News/Kenya-Bashir-visit-in-our-interest-20100829> (last accessed 23 September 2010); “Kenya should ‘clarify ICC position’” (29 August 2010) News24.com, available at: <http://www.news24.com/Africa/News/Kenya-should-clarify-ICC-position-20100829> (last accessed 15 October 2010).

41 See Human Rights Watch “Selling justice short: Why accountability matters for peace” (July 2009), available at: <http://www.hrw.org/node/84264/> (last accessed 30 September 2011).

42 Arrest warrants issued for leaders in the former Yugoslavia, for example, did not impede the attainment of a peace agreement to end conflict in the Balkans. Similarly, an arrest warrant issued for former Liberian president, Charles Taylor, for crimes committed in Sierra Leone did not obstruct a peace agreement to end conflict in Liberia. In both situations, the marginalization of the suspects actually seemed to prove helpful in advancing negotiations. In another example, a feared “climate of instability”, that would lead to the unravelling of the democratic transition in Chile due to proceedings initiated against Augusto Pinochet, did not occur. See id at 3–4, 18–27 and 109–12.

43 Principled criticism, such as regarding the need for a more equitable application of international justice, is also valuable, especially when it is framed by an overarching dedication to the ICC's mission and cooperation with the court.

44 Notably, South Africa relied heavily on such domestic implementing legislation when it explained that President al-Bashir would be arrested should he enter the country, despite the AU's call for non-cooperation in his arrest. See South African Government Information “Notes following the briefing”, above at note 16.

45 Other states have passed legislation implementing some aspects of the Rome Statute, and draft implementing legislation is pending in others. For greater (though not necessarily fully updated) information on the extent of implementing legislation in ICC states parties, see Coalition for the ICC “Full chart on the status of ratification and implementation of the Rome Statute and the Agreement on Privileges and Immunities (APIC)”, available at: <http://www.coalitionfortheicc.org/?mod=download&doc=12199> (last accessed 8 November 2010).

46 For more detailed discussion of the role of the ASP, see: Rome Statute, art 112; Human Rights Watch “Courting history: The landmark International Criminal Court's first years” (July 2008) at 211 − 14, available at: <http://www.hrw.org/reports/2008/icc0708> (last accessed 30 September 2011).

47 AU Assembly “Decision on the implementation of the decisions on the International Criminal Court (ICC)”: Assembly/AU/Dec.334 (XVI) (Addis Ababa, 31 January 2011), available at: <http://au.int/en/sites/default/files/ASSEMBLY_EN_30_31_JANUARY_2011_AUC_ASSEMBLY_AFRICA.pdf> at 2 (last accessed 10 October 2011); AU Assembly “Decision on the implementation of the Assembly decisions on the International Criminal Court - Doc. EX.CL/670(XIX)” in Decisions, Declarations and Resolution of the 17th ordinary session of the AU Assembly: Assembly/AU/Dec.366 (XVII) (Malabo, July 2011) 9, available at: <http://www.au.int/en/sites/default/files/Assembly_AU_Dec_363-390_(XVII)__E.pdf> (last accessed 30 September 2011).

48 “Djibouti will not honor its Rome Statute obligations, invites Sudan's Bashir” (5 April 2009) Sudan Tribune, available at: <http://www.sudantribune.com/Djibouti-will-not-honor-its-Rome,30777> (last accessed 10 October 2011).

49 See, for example, Lawyers for Human Rights “Observations and recommendations on the International Criminal Court and the African Union in advance of the 17th African Union Summit (30 June – 1 July)” (press release, 21 June 2011), available at: <http://www.lhr.org.za/news/2011/observations-and-recommendations-international-criminal-court-and-african-union-advance-17> (last accessed 30 September 2011); “Botswana breaks ranks with AU over Kadhafi warrant” (6 July 2011) The Times (Johannesburg), available at: <http://www.timeslive.co.za/africa/2011/07/06/botswana-breaks-ranks-with-au-over-kadhafi-warrant> (last accessed 29 July 2011).