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South Africa and al-Bashir’s escape from the ICC

Ten years after the UNSC’s referral of the situation in Darfur to the Prosecutor of the ICC, the sad reality is that all the main suspects still remain at large, shielded by their high position within the Government of Sudan. The most outstanding case of warrants of arrest remaining to be executed are those issued by Pre-Trial Chamber (PTC) I on 4 March 2009 and 12 July 2010 against Omar al-Bashir, the President of the Republic of Sudan since 16 October 1993, and the first and only non-ICC state party’s incumbent Head of State facing genocide charges, allegedly committed in the Darfur region of Sudan.

Recently, President al-Bashir was able to return to Khartoum after attending the 25th Summit of African Union in Johannesburg in June.

Shockingly enough, South Africa has decided to join the apparent institutionalisation of non-cooperation with the Court requested by the African Union (AU).

As a founding member of the ICC, which under the Nelson Mandela presidency had put human rights at the centre of its foreign policy, South Africa has been one of the strongest supporters of the Court and is one of the few African States to have implemented the provisions of the Rome Statute into domestic law. South Africa has warned al-Bashir twice in past years not to visit the country because he might face arrest.

The South African government, backed by the African National Congress (South Africa’s governing social democratic political party), held the view that the ICC requests were preempted by the obligation to respect al-Bashir immunities as head of a member state of the African Union.

In the belief that the involvement of the ICC in the situation in Darfur poses a threat to peace and security on the African continent, the African Union decided its members must not cooperate with the ICC (pursuant to Article 98 of the Rome Statute) until the UN Security Council has considered the request by the AU for a deferral of its decision to refer the matter to the ICC for investigation.

Notably, this request has not been acted upon. In Resolution 1828, which extended the mandate of the African Union-United Nations Hybrid Operation in Darfur (UNAMID), the UNSC turned down the AU the request for a deferral. Instead, the UNSC simply stated in a preambular paragraph that it was ‘taking note’ of the African Union’s concerns, and emphasized in another preambular paragraph ‘the need to bring to justice’ the perpetrators of the ongoing crimes.

Notwithstanding the subsequent practice of the Security Council, the South African government decided that it was obliged to follow the AU decision and consequently not to arrest and surrender the Sudanese President to the ICC during his visit to the country. There is little doubt that this action, in line with the profound strain in the relations between the African Union and the ICC, has been taken in plain defiance of state party obligations vis-à-vis the ICC, the Rome Statute, and UNSCR 1593 (2005).

At the domestic level, the South African government’s decision to let al-Bashir to visit the country, and leave it without being arrested, caused a serious constitutional crisis. The Southern African Litigation Centre (SALC) had brought an urgent application against the government decision to grant immunity to all delegates attending the AU Summit. A South African High Court issued an interim order on 14 June 2015 compelling the State Respondents, including the Department of Home Affair, to take all the necessary steps to prevent the Sudanese President from leaving the country until the Court handed down a final order. The government failed to enforce this interim order.

On 15 June 2015 the South African High Court ruled that the State’s failure to comply with the two ICC warrants of arrest, and to enforce the High Court’s order to detain al-Bashir, was a plain violation of South Africa’s obligations both under international and domestic law. Presumably, the opposition parties and SALC will duly consider pursuing contempt proceedings against the South African government for contravening the High Court orders, and for violating the South African Constitution and the International Criminal Court Act 27 of 2002 that domesticated the Rome Statute’s obligations.

It is not entirely clear why the South African president, Jacob Zuma, has voluntarily decided to join the growing number of African leaders who argue that the ICC is biased against Africa, representing a glaring practice of selective justice, a 21st form of neo-colonialism, and an oppressive tool of Western powers.

 Omar al-Bashir, 12th AU Summit, U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B. Awalt/Released, via Wikimedia Commons, public domain
Omar al-Bashir, 12th AU Summit, U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B. Awalt/Released, public domain, via Wikimedia Commons

A central purpose of the new system of international criminal accountability (established by the creation of the first permanent International Criminal Court) is to prosecute government leaders who might otherwise use their power positions to secure impunity for their crimes.

President Zuma’s political party (ANC) has called for a review of the Rome Statute in order “to compel all member states of the United Nations to be signatories to the Rome Statute to ensure that the ICC is able to act in accordance with the function for which it was intended – a fair and independent court for universal and equitable justice.” The ANC seems to forget that the choice of the Rome Conference has been to establish a Court that “ shall be brought into relationship with the United Nations” but which is not part of the UN system; that the Security Council cannot override the terms of the Statute; that the only way for the ICC to assert personal or territorial jurisdiction over non-party states is where it is invited to do so by that non-party state via a formal declaration, or by the Security Council using its exceptional coercive power under Chapter VII and the trigger mechanisms of Article 13(b) of the Rome Statute — a situation within a non-party state (like Sudan) that threatens the international peace and security.

Investigations and prosecutions in Africa should not be curtailed until the ICC reaches a true universality. Enhancing universality is a priority for the Court and has been since its establishment. Nonetheless, as a treaty-based institution, the ICC has only jurisdiction over crimes committed on the territory, or by nationals, of states that have freely accepted the Court’s jurisdiction by ratifying the Rome Statute. With a membership of 123 states parties (out of 193 UN member states), the ICC still lacks of universal jurisdiction to make it a truly global institution.

In a statement concerning South Africa’s position on the ICC matter, an Acting cabinet spokesperson said that the South African government would review South Africa’s participation in the Rome Statute and that South Africa may, as a last resort, also consider withdrawing from the ICC. Such a decision will only be taken when South Africa has exhausted all the remedies available to it in terms of the Rome Statute, the Charter of the United Nations, and other international law instruments.

Among the reasons for such a dramatic statement, the government mentioned the fact that the Permanent Members of the Security Council, which are not parties to the Rome Statute, may participate fully in discussions on the ICC and referrals to the ICC by the Security Council of a situation in a country. Moreover, the UNSC Permanent Members have taken steps to ensure that their officials and military personnel will not be subjected to the jurisdiction of the ICC.

Secondly, the government mentioned the tension between Article 27 (2), which confers to the ICC the jurisdiction over anyone, irrespective of that person’s official status, and Article 98 that addresses the traditional types of immunities recognized under international law and establishes the conditions under which the Court may proceed with a request for surrender or assistance.

According to the South African government, which referred expressly only to the international agreements mentioned in paragraph 2, Article 98 places a clear obligation on the ICC to assist countries that have difficulties in executing the warrant of arrest for President al-Bashir because of their international obligations.

International Criminal Court in The Hague. © thehague via iStock.
International Criminal Court in The Hague. © thehague via iStock.

Also according the South African government the ICC has not acted in good faith during the consultations imposed by Article 97 of the Statute (in case of disagreement as to the general obligation to cooperate). The government asserts that the ICC has not made serious and sincere efforts to assist South Africa in its difficulties in executing the warrants of arrest.

This Article stays at the heart of the complex and carefully drafted provisions contained in Part 9 of the Statute, setting out the scope of State Parties’ obligations regarding international cooperation and judicial assistance for the gathering of evidence and for the arrest and surrender of persons. It establishes a general obligation incumbent upon States Parties to consult without delay with the Court on problems which may impede or prevent the execution of the request, such as breaching a pre-existing treaty obligation. In this respect, it’s difficult to qualify the 2009 AU decision not to cooperate with the Court, pursuant to Article 98 of the Rome Statute, as a “preexisting treaty obligation” incumbent upon African states parties.

As to the duty to consult with the Court under Article 97, the Ambassador of South Africa to the Netherlands and an accompanying legal advisor effectively entered into consultations with the ICC on 12 June 2015. According to the government, the Ambassador stressed in that meeting that he was unable to deal with the technical and legal issues involved, thus asking for a second meeting with the Court, finally arranged for Sunday 14 June 2015.

However, late on Saturday 13 June 2015, the Prosecutor of the ICC made an urgent request to the ICC for an order further clarifying that Article 97 Consultations with South Africa concluded and that South Africa is under the obligation to immediately arrest and surrender President al-Bashir, without giving any notice whatsoever to South Africa. PTC II of the ICC heard the matter and issued a Decision on the same day. It decided that it was unnecessary to further clarify that the Republic of South Africa (RSA) is under the duty to immediately arrest al-Bashir and surrender him to the Court, as the existence of this duty was already explained to South Africa on 12 June 2015 in response to the South African note verbale. Particularly, the Court stressed that South Africa was reminded of the decision issued by the Court on 9 April 2014, in which the PTC II settled the very same matters raised at the time by the Democratic Republic of Congo.

In that decision the ICC chamber clarified that there exists no impediment at the horizontal level regarding the arrest and surrender to the Court of al-Bashir, since the UNSC, acting under Chapter VII of the UN Charter, had already implicitly waived the immunities granted to al-Bashir under international law and attached to his position of a head of state. Consequently, DRC could not invoke any obligation to the contrary, including that of the AU, pursuant to Articles 25 and 103 of the UN Charter. The conclusions reached by the ICC are clearly supported by the proper general interpretative principles and presumptions applicable to the UNSCRs. Therefore they are applicable, mutatis mutandis, to RSA.

In this respect, the argument made by South Africa appears rather as a pretext.

Also questionable is the declaration made by the South African government that it will enter into formal negotiations with the ICC on the matter with the view to understand the ICC’s reasoning and how it interprets Article 97. By consenting to this mechanism, which imposes at the same time an obligation of conduct and an obligation of result (to resolve the matter in good faith), the State Parties to the Rome Statute have agreed upon giving to the ICC the ultimate interpretation of the extent of their duty to cooperate, and the “final say” — being entitled to a decision from the relevant ICC’s chambers.

Sudan and South Sudan Political Map. © PeterHermesFurian via iStock.
Sudan and South Sudan Political Map. © PeterHermesFurian via iStock.

Therefore, they have ultimately agreed that it is a matter for the Court to determine whether the requested state may legitimately propose a valid ground for refusing the requested cooperation, since the aim and the ratio of the Article 97 is that States shall consult with the Court without delay in order to resolve the matter and not to water down the ICC’s cooperation regime. Article 87(7) of the Statute confirms this conclusion by expressly giving the power to the Court to make a judicial finding upon any disagreement relating to whether or not a requested state is obliged to cooperate with the Court and whether the impediments enumerated in Article 98 of the Statute apply.

Contrary to what is implicitly asserted by the South African government, clearly not all the problems that might impede the execution of an ICC’s request turn ipso facto into legitimate grounds for refusal of cooperation with the Court. Furthermore, any disagreement relating to whether or not a requested state is obliged to cooperate with the Court in respect of a request for surrender and assistance is a dispute concerning the judicial function of the Court, one that should be settled by the Court itself under Article 119 (1) of the Statute.

The Court’s competence to make a judicial findings on a non-cooperating state’s illegal action, contrary to the provisions of the Statute, consequently shifts the pendulum towards a cooperation model of the Rome Statute more “vertical” and “supranational” than currently qualified.

Analogously, it is questionable that the South African declaration — that it will enter into immediate discussion with the African Union and its member states on African dispute resolution mechanisms — can be better implemented to find an African solution to African problems. South Africa seems to have done nothing more than a lip service to the envisaged amendment to the protocol of the Statute of the African Court of Justice and Human Rights to expand this court’s jurisdiction to include international and transnational crimes, such as terrorism, piracy, and corruption.

It’s worth noting that this draft Protocol is not only studiously silent on any relationship between the African Court and the ICC, but that it provides in its current Article 46 A bis the express respect of immunities attached to the official capacity of any person serving as a AU head of state or government, or anybody acting in such capacity, or other senior state officials based on their functions during their tenure of office. There is legitimate concern that the AU Commission has simply envisaged a negative complementarity with the ICC international criminal system in order to protect the African leaders and the sovereign rights of its members (including fugitives from justice) more than the rights of thousands of African civilian victims.

Those victims, particular women and children, as well as millions of displaced people, remain the distinct feature of the conflict in Darfur.

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