Argumentation through law: an analysis of decisions of the African Union

There is a long-standing dispute between the African Union and the International Criminal Court. At one level, this dispute concerns legal-technical questions such as immunities of heads of states, the identification of customary law, or the scope of resolutions of the UN Security Council. However, underlying these legal disputes are highly political questions regarding recognition, respect, and equality. The African Union has addressed these questions in a series of formal Decisions, adopted by its highest organ, the Assembly of Heads of State and Government. These Decisions reveal what gives the more doctrinal debates their political bite. In addition, these Decisions present the stance of the African Union in the form and with the authority of law, thus binding member states and presenting a unified position vis-à-vis the International Criminal Court and other international audiences. Political struggles are thus partly articulated in legal form, a type of “argumentation through law” that attaches formal validity to claims about membership, recognition, and equality.