The success of an international criminal justice mechanism is likely to depend on cooperation with States. It is thus generally expected for statutes of international criminal tribunals to provide some mechanism for cooperation between the tribunal and States.Footnote 1 It was thus to be expected that the AU would include some provisions on cooperation in the Statute of the African Court, annexed to the Malabo Protocol.
Yet, experience shows that having provisions on cooperation in a statute does not guarantee cooperation. Obtaining cooperation very often depends on the right legal framework, including absence of conflicting obligations, as well as consistent political interest and potential consequences of non-cooperation. To these, one might add the potential consequences of cooperation if that cooperation requires the arrest of sitting of head of another State. The recent, and much publicized, alleged case of non-cooperation of South Africa in the arrest of the Sudanese President, Al-Bashir, while attending the African Union (AU) Summit in Johannesburg is illustrative of how these factors can lead to cases of non-cooperation.Footnote 2 In that case, the presence of a conflict of obligations between the rules of customary international law and the Summit Host Agreement between South Africa and the AU, on the one hand and, on the other hand, the duty to cooperate under the Rome Statute,Footnote 3 was a significant factor in the eventual non-arrest of Al-Bashir.
Also, significant, however, were the political dynamics. Arresting an African head of State to surrender him to the ICC, at a meeting of heads of the African Union when the latter organization had a policy of non-cooperation with the ICC, and just a few months after xenophobic attacks against nationals from other African States in South Africa was, quite apart from all the legal controversies, politically impossible. Politically, with South Africa keen to shed the label of ‘big brother’ on the continent, a decision to arrest Al-Bashir could have set South Africa’s relations with other African States and the African Union back. South Africa would likely have been sanctioned by the AU, possibly expelled or suspended from the organization. More than likely, potential consequences, both legal and political, could have a played a role in the events surrounding Al-Bashir’s presence and departure from South Africa.
The stark consequences for South Africa, should it have decided to ignore its political and legal commitments to the AU can be compared with the almost non-existent consequences for the non-arrest of Al-Bashir. From the experience of the previous seven cases of non-cooperation (Kenya, Djibouti, Chad on two occasions, Malawi, Nigeria and the DRC),Footnote 4 the consequence of non-arrest was a referral to an apparently disinterested the Security Council and the ICC Assembly of States Parties and nothing else. Politically neither the Security Council nor the Assembly of States has shown any appetite, despite the potential tools at their disposal, for action against non-cooperating States.Footnote 5 On the other hand, the legal consequences of acting inconsistently with the customary international law and Host Agreement obligations would have meant the suspension of South Africa from the AU.
The role of competing obligations as a factor determining cooperation is not only limited to the political. As a matter of international law, any breach of a rule, whether customary international law rules on immunity, the AU Host Country Agreement or the duty to cooperate under the Rome Statute implies the responsibility of a State. Yet when these obligations pull in opposite directions, their impact on a decision to cooperate or not is significantly diminished since any decision taken would, in any event, implicate that State’s responsibility – a case of ‘damned if you do, damned if you don’t’. All of these considerations that affect the will to cooperate should play some role in the development of a system of cooperation with the African Court. In particular, to the extent possible, avoiding conflict with other legal regimes is a key ingredient to enhancing cooperation.
In the light of the issues highlighted above, this chapter addresses the provisions on cooperation in the Malabo Protocol. I begin, in the next section, by addressing some issues of context, including the importance of cooperation for the success of an international criminal justice system. I then provide a descriptive analysis of the provision on cooperation in the Malabo Protocol. Finally, I evaluate the prospects for the success of the cooperation regime before offering some concluding remarks. The Malabo Protocol follows other international criminal tribunals with track records of successes and challenges. The experience of the ICC, a Court established by treaty like the AU Court, provides a particularly useful vantage point from which to evaluate the provision on cooperation in the Malabo Protocol.
The importance of cooperation for the success of international criminal courts and tribunals cannot be overemphasized.Footnote 6 The importance of cooperation in the Rome Statute system is reflected in the elaborate framework for cooperation in Part Nine of the Rome StatuteFootnote 7 as well as the constant reaffirmation of the duty to cooperate by the Assembly of State Parties.Footnote 8 As with the ICC, the effectiveness of the African court in the execution of its criminal jurisdiction, would be greatly diminished without cooperation. Like other international criminal courts and tribunals, the African Court and its criminal chamber will not have a police force at its disposal to arrest persons with outstanding arrest warrants nor will it be able to freeze assets, or provide prisons for holding convicted persons. The African Court will, without the cooperation of States, find it difficult to secure witnesses, obtain documents and other evidence. Only States, which exercise sovereignty over territory, can perform these functions unhindered.
While cooperation is central to the success of international criminal courts and tribunals, recent experience with the ICC shows that when difficulties and conflicts between various interests and obligations arise it is very often cooperation that suffers.Footnote 9 In the wake of political (and legal) tensions between the AU and the ICC, the AU decided that African States were not to cooperate with the ICC in the case of the ICC against Al-Bashir.Footnote 10 In a sense, the AU decided to ‘hit’ the ICC where it would hurt the most – in the area of State cooperation. Similarly, when African states have been faced with political and legal dilemmas involving cooperation, it has been cooperation that has received the short end of the stick. To date, in addition to the most recent case of South Africa, there have been cases of non-cooperation in the arrest and surrender of Al-Bashir, namely Kenya, Malawi, Chad (on two occasions), Nigeria, the Democratic Republic of the Congo, the Central African Republic and Djibouti (on two occasions) and Uganda. The Kingdom of Jordan has also been found guilty of non-cooperation in the arrest and surrender of Al Bashir.
It should be stated that it is not only the AU that has contributed to non-cooperation. Several decisions of non-cooperation have been transmitted to the Assembly of States Parties and the Security Council in accordance with Article 87(7) of the Rome Statute.Footnote 11 In 2011, the Assembly of States Parties adopted a set of procedures for addressing cases of non-cooperation (hereinafter the ‘Assembly Procedures’) to promote compliance with the duty to cooperate.Footnote 12 The Assembly Procedures makes provision for, inter alia, the appointment of ‘a dedicated facilitator to consult on a draft resolution containing concrete recommendations’ concerning the State that is guilty of non-cooperation.Footnote 13 Yet in all the cases of non-cooperation referred to the Assembly of States, there has not been a single dedicated facilitator or a resolution with concrete recommendations. While it is possible to speculate on the reasons why the Assembly of States has never acted on non-cooperation cases referred to it, this inaction, at best, shows a lack of commitment to act in the face of non-cooperation and, at worst, a sacrifice of cooperation at the political altar. It might also be just a reflection of the fact that it is difficult to conceive of real sanctions. The only real sanction is probably suspension, but this is politically not possible when the ICC is trying to achieve universality.
The same cases of non-cooperation referred to the Assembly of States have also been referred to the Security Council under Article 87(7). Like the Assembly of States Parties, the Security Council has not, in any of those cases, taken action in response to address these cases of non-cooperation.Footnote 14 Indeed the lack of seriousness with which the Security Council takes cooperation is also reflected in the resolutions adopted by the Security Council referring situations to the ICC. In both resolutions, Resolution 1593 and Resolution 1970, the Security Council places a duty on the situation country to cooperate with the ICC, but does not place a similar duty on other States to cooperate with the ICC.Footnote 15 Of course, States Parties would be obliged under the Rome Statute but this obligation would not be underpinned by the supremacy of Security Council resolutions.Footnote 16 If the Council valued cooperation above other interests, a duty to cooperate would be placed on all States in the resolution, to avoid a conflict of legal obligations.Footnote 17
While cooperation is central to the success of international courts and tribunals, it appears that all too often it is sacrificed in favour of other interests. To promote the success of the African Court, in particular with respect to its criminal mandate, it is important that the framework for cooperation takes into account the factors that might undermine cooperation.
While the Malabo Protocol does not provide as comprehensive a framework as that provided for in the Rome Statute, Article 46L does contain important elements of cooperation. It contains a general obligation for States Parties to ‘cooperate with the Court in the investigation and prosecution’ of crimes under the Statute of the Court.Footnote 18 The cooperation provision also contains a non-exhaustive list of the forms of cooperation.Footnote 19 The list contains many of the forms of cooperation that are also found in the Rome Statute, including the ‘identification and location of persons’,Footnote 20 ‘taking of testimony’,Footnote 21 ‘service of documents’,Footnote 22 and ‘identification, tracing and freezing or seizure of proceeds’Footnote 23 of crimes under the jurisdiction. The amended Statute also provides for the enforcement of sentences ‘in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.’Footnote 24 As with similar provisions in statutes of other tribunals, this provision does not lay down an obligation to accept prisoners except in cases where a subsequent agreement to that effect has been included.Footnote 25 Finally, as a general point, like the Rome Statute, the Malabo Protocol provides the possibility for cooperation with other ‘regional or international court, non-State Parties’ and other partners.Footnote 26 While such cooperation may be ad hoc, i.e. without any prior agreement, the Protocol recognizes that conclusion of agreements would facilitate cooperation with other entities.Footnote 27
Unlike the Rome Statute, arrest and surrender in the African Court Statute is provided for in the list of forms of cooperation and assistance, and not in a separate and more detailed provisions.Footnote 28 Article 46L(2)(e) provides for States Parties to cooperate with the Court in the ‘arrest, detention or extradition’ of persons while Article 46L(2)(f) provides for the ‘surrender or the transfer of the accused to the Court.’ In the context of cooperation with the Court, it is not clear what the difference is between ‘surrender or transfer’, on the one hand and, on the other hand, ‘extradition’. Extradition normally refers to the transfer of persons to another State while surrender and/or transfer is normally reserved for transfer to international courts. However, Article 46L is concerned with cooperation with the Court and, in that context, the distinction between transfer to an international court and extradition to another state does not seem particularly meaningful.
There are some forms of cooperation in the Rome Statute that are not mentioned in Article 46L (2) of the Statute, such as the questioning of persons,Footnote 29 ‘examination of places or sites’Footnote 30 and the ‘provision of records and documents’.Footnote 31 However, all of these can be covered, either by other related forms of cooperation, the catch-all ‘or any other type of assistance’ or by the fact that the list is described as a non-exhaustive list. While it true that the Statute of the Court does not go into any detail, as is the case with the Rome Statute,Footnote 32 on the modalities for cooperation this is not necessarily a weakness in the cooperation framework. These more administrative or bureaucratic details are rarely ever the cause of non-cooperation and can often be worked out in the practice of the Court, in its interaction with States parties.
Notable by its absence in the African Court Statute is an exception to cooperate similar to Article 98 of the Rome Statute. Such a provision may have been seen as unnecessary since the exercise of jurisdiction over officials with immunity is excluded by Article 46A bis of the Statute of the African Court.Footnote 33 However, it should be recalled that the phrase ‘officials’ in the Statute remains to be interpreted by the Court, and it may be that in the future Article 46 A bis could be interpreted by the Court as not applying to all officials entitled to immunity under international law.Footnote 34 Moreover, depending on the interpretation of the phrase ‘during their tenure in office’, immunity under Article 46 Abis may cease after a person leaves office even for acts performed in an official capacity while in office. This would mean the Court would be entitled to exercise jurisdiction over some individuals who are no longer officials in respect of acts for which they retain immunity under customary international law. At any rate, it may well be that it is necessary to provide an exception from the duty to cooperate for other reasons, such as national security. While the Rome Statute does contain an elaborate regime in Article 72 for dealing with materials that could prejudice national security, Article 93(4) makes it plain that a State may deny a request to provide information or documents if the provision of such information or documents would prejudice national security.
As discussed above, experience with the ICC’s referral of cases of non-cooperation to political bodies does not reveal a promising pattern. Nonetheless, there is a value of such referral, even if it does lead to any concrete results of sanction. It serves, in the first place, to place the issue on the agenda and to afford States the opportunity to discuss the matter. Whether States take the opportunity or not is an altogether different matter. Second, whatever the consequences (or lack thereof), States generally do not like to be shown in bad light in reports before international organizations. Finally, while empirically political bodies have not acted on cases of referral of non-cooperation, that does not mean this will always be the case. Providing for referral of non-cooperation creates the possibility, even if remote, of some action. The Malabo Protocol could, therefore, have made provision for a referral of cases of non-cooperation.
There are other aspects of cooperation that could have been addressed in Statute. For one thing, the Statute does not address the potential for conflicting requests of cooperation, particularly in relation to arrest and surrender.Footnote 35 The nature of the crimes covered in the Statute, namely international and transnational crimes, creates the potential for multiple claims of jurisdiction, with the potential for multiple requests for surrender or extradition. A provision on how a requested State is to priorities these requests could be useful to avoid conflict between States inter se, and States and the Court. The Statute could also have provided for a consultation mechanism, for those cases where a States have difficulty cooperating with the Court.Footnote 36 Finally, in the light of the complementary jurisdiction of the Court, a provision promoting, if not obliging, interstate cooperation to foster domestic investigations and prosecution would have been advisable. Such a provision is also lacking in the Rome Statute and there have been efforts to address this gap.Footnote 37 The gap is particularly acute given the Malabo Protocol establishes jurisdiction over transnational crimes which are ordinarily prosecuted in domestic courts.
While there are certainly provisions that could have been included, for example exception from the duty to cooperate and provisions on interstate cooperation, on the whole the legal framework for cooperation under the Statute is sufficiently comprehensive to facilitate cooperation with the Court. Experience from the early years of the ICC, however, shows that a sufficient legal framework does not always translate to full cooperation. Moreover, adequacy of the international framework is also often insufficient. A strong domestic framework to implement the international law framework is very often crucial. Indeed, in South Africa, the Supreme Court of Appeal found that there was a duty to arrest Al-Bashir based almost entirely on domestic law.Footnote 38 I turn now to address potential challenges and opportunities for effective cooperation.
As a general rule, States cooperate with international criminal courts and tribunals in accordance with their obligations. It is mainly when there are in conflicts in obligations and/or when national interests are negatively implicated that obligations to cooperate are likely not to be complied with. This includes national interests relating to political relationships with States and international organizations, as is the case in relation to the request for the arrest and surrender of Al-Bashir which would affect not only an African State Parties’ relations with the Sudan but also with the AU. Arresting a sitting foreign head of State (or maybe even a former head of State who still has the respect of his State) is, quite apart from the issue of immunities, politically more risky or undesirable than arresting and surrendering a person from another State who does not hold high office. In this sense, the inclusion of Article 46 A bis on the respect of immunities will not only reduce the possibility of a conflict in legal obligations, but will also reduce the potential for the conflict between political interests and the duty to cooperate.
However, even with the preservation of immunity under the Statute, there remains the possibility for non-cooperation with requests from the Court. As mentioned above, for example, there remains the possibility of a restricted interpretation of Article 46 A bis by the Court, potentially re-establishing the immunity-cooperation conflict. At any rate, when it comes to prosecutions of certain offences in the material jurisdiction of the African Court, it is unlikely that a government that has successfully taken over power through unconstitutional change of government would cooperate with the Court in proceedings related to the crime of unconstitutional change in government. Other reasons for non-cooperation may include, for example, an appeal to national security where requested documents or materials are deemed classified. Whatever the reason, there remains the possibility for non-cooperation with the requests of the Court.
The possibility brings into sharp focus the question of consequences for non-cooperation. Leaving aside the debate on the correct interpretation of the Rome Statute and its Article 98, part of the reason for the continued non-cooperation with the ICC is the impotence of the enforcement mechanisms for non-cooperation with Rome Statute obligations, namely the Security Council and the Assembly of States Parties. Thus, when faced with competing obligations and interests, States Parties to the Rome Statute are likely to choose other obligations over those under the Rome Statute since violations of the latter do not carry any real consequences.
A mechanism that could prove useful in facilitating cooperation with the obligations under the Statute may be the powers of the African Union’s Assembly of Heads of State to sanction non-compliance with AU decisions under Article 23 of the AU Constitutive Act. As discussed, however, this would require the power to refer cases of non-cooperation to the Assembly. At any rate, whether this will be applied will be dependent on the political will of the Assembly which, like the Security Council, is a political body that takes into account political considerations in its decisions to exercise the powers to sanction. Political pressure from other States Parties to the African Court, including through exertion of economic pressure, on a non-complying state, might be yet another option for ensuring compliance. It is widely reported, for example, that the decision of Malawi to withdraw from hosting the AU Summit in 2012 was the threat of withdrawal of aid by mainly European States Parties to the Rome Statute.Footnote 39 However, whether powerful African States would be willing to exert that kind of pressure, and risk damaging relations with other States for the sake of the African Court is also unlikely.
The Statute establishes a strong and coherent legal framework for cooperation with the Court. While there are certainly other provisions that could have been included, this framework, based on comparable frameworks in the statutes of other international criminal tribunals, is comprehensive and addresses all necessary elements. This framework contains the provisions necessary to facilitate cooperation. Moreover, the inclusion of a provision respecting the immunity of officials, will significantly reduce incidences likely to lead to non-cooperation. Cooperation, however, is not dependent only on the legal framework. Where cooperation conflicts with political interests of States Parties there may, however, still be cases of non-cooperation.
In cases of potential non-cooperation from States Parties, the most important indicator of whether cooperation will take place will be the political will of other States Parties of the African Court, whether individually through influence, including economic pressure, or collectively through, for example, the power of the Assembly of Heads of State of the African Union to sanction members for non-compliance with the AU decisions. The experience of the ICC, however, does not paint a picture of promise. Whether AU Member States, given their relative homogeneity, will lead to different results remains to be seen.