Ford Institute Presents Charles C. Jalloh

01/28/2011

Story by Joumana King

The Ford Institute for Human Security welcomed Professor Charles C. Jalloh on Wednesday, January 26th, 2011 to speak about the relationship between peace and justice, as manifested in the challenges to international criminal justice in Africa posed by the International Criminal Court’s indictment against Sudan’s President, Omar al-Bashir for his role in events in Darfur. 

Professor Jalloh, who served as legal advisor in the Special Court of Sierra Leone, is currently an Assistant Professor in the School of Law at the University of Pittsburgh where he specializes in international human rights law and international criminal law.  His lecture traced the sources of tension between law and politics in the context of the African Union’s repeated requests to the United Nations Security Council to suspend the indictment processes initiated by the International Criminal Court (ICC) in 2008, by invoking Chapter 16 of the Rome Statute that established the ICC. 

A large audience attended Professor Jalloh’s presentation of his ongoing research contained in the position paper “An African Expert Study on the African Union Concerns About Article 16 of the Rome Statute of the ICC.”

In July 2008, the ICC accused President al-Bashir of war crimes, crimes against humanity, and genocide for his role in Darfur.  Professor Jalloh explored the controversial issue of whether the United Nations Security Council should suspend the International Criminal Court’s indictment against President al-Bashir, by explaining the process of the Rome Statute’s referral of cases, giving details of the application of Articles 13 and 53.  The controversy concerns the damage to Sudan’s sovereignty, as President al-Bashir is the first head of state to ever be indicted by the ICC, and the fact that lack of cooperation by governments has prevented the enforcement of the indictment. The African Union, the League of Arab States, and the governments of Russia and the People’s Republic of China oppose the Court’s decision.  Without their cooperation, the arrest or surrender of President al-Bashir is unlikely to take place.

To remedy the situation, in November 2009 the African Union proposed an amendment to Article 16 that would empower the General Assembly to act, should the United Nations Security Council fail to act on a deferral request after six months.  Although the amendment has gained little support among the state parties to the Rome Statute, Professor Jalloh emphasizes the merits of the proposed amendment, stating foremost, that a failure to engage with the African Union’s concerns could further damage the International Criminal Court’s credibility on the African continent.  In addition, this issue of an Article 16 deferral request is likely to arise in the future with respect to other situations, so solutions must be developed to sustain the relationships between the United Nations Security Council, the International Criminal Court, and the peacemaking initiatives of governments. 

Professor Jalloh suggested, while a strong and independent International Criminal Court is vital in tackling international crimes, the Court must be sensitive to the African states’ interests and be willing to adopt proposed amendments to Article 16.  He outlined several recommendations, including engaging in a deeper dialogue among all of the parties, encouraging affected states to make a more reasoned case using all relevant United Nations procedures, and persuading states to expand the use of domestic prosecutions of those accused of International Criminal Court crimes.

Following the presentation, students and faculty inquired whether the International Criminal Court should suspend the indictment against President al-Bashir.  Conceding that it is “difficult to make peace when one of the parties is under indictment,” Professor Jalloh proposed a conditional deferral as the best option.  When asked whether an indictment is a positive or negative policy tool, Professor Jalloh used the examples of Sierra Leone and Uganda to emphasize that there is not enough evidence to say empirically whether an indictment motivates an accused actor to refuse or acquiesce to negotiated settlement.     

To access Charles C. Jalloh’s paper, titled “An African Expert Study on the African Union Concerns About Article 16 of the Rome State of the ICC,” click here.