On 29 April 2018, the Southern Africa Litigation Centre (SALC) jointly with Professor Bonita Meyersfeld, filed an application for leave to make amicus curiae submissions in the case of The Prosecutor v Omar Hassan Ahmad Al-Bashir before the International Criminal Court (ICC).
On 29 March 2018 the Appeals Chamber of the ICC issued an invitation to states and Professors of International law to make submissions on the merits of the case concerning the Hashemite Kingdom of Jordan’s failure to arrest President Al-Bashir when he visited the country to attend the Arab Summit.
The Pre-Trial Chamber of the ICC found the Hashemite Kingdom of Jordan had failed to comply with the Rome Statute. The Pre-Trial Chamber referred Jordan to the United Nations Security Council and the Assembly of States Parties in accordance with the provisions of article 87(7) of the Rome Statute.
It is with grave concern that SALC notes that not a single African professor or institution was accepted as an amicus in this case. SALC is deeply disappointed that the ICC has not selected any African amicus curiae submissions. In a matter dealing with African states, in a context of increasing resistance by African states to the ICC, the exclusion of African voices is deeply disturbing. Only European and American submissions were accepted. The basis of the decision is respected and the Court chose the submissions it believes would facilitate their understanding of the issues. However, African voices are seminal to this process and, once again, have been excluded. This is particularly disconcerting given that the African submissions were made by experts who have written and worked on the issue of African marginalisation before the ICC. The African Union has criticised the ICC for its prosecution of African leaders to the exclusion of leaders from the Global North. Reacting to the decision of the Court, Prof. Meyersfeld stated as follows:
“While we respect the court’s decision, we also feel that this is a missed opportunity to present much needed African voices to the Court. Nevertheless, we will keenly follow the case as it represents an opportunity for the Court to correct a confusing and inconsistent jurisprudence that has impacted on how States cooperate with the Court.”
SALC’s application can be viewed here. The Appeals Chamber’s decision can be accessed here. In an interesting move on the 25th May 2018, the Appeals Chamber also made a request for Sudan and Mr Al Bashir to make written representations on the legal questions raised by Jordan. This request can be viewed here.