South Africa’s Withdrawal: A Lesson Learned?

In October 2016, South Africa formally notified the United Nations Secretary-General of its withdrawal from the Rome Statute (‘RS’) pursuant to article 127(1) thereof. In its reasons for so doing, the fact that it was placed under ‘conflicting international law obligations’ during President Al-Bashir’s visit to the country was particularly relevant. The importance of distinguishing ‘well-founded concerns’ from other reasons for withdrawal has been subsequently noted; this helps draw the appropriate lessons therefrom. In a previous post, it was argued that there is no such conflict. However, varying views on the matter should be duly considered, particularly since the cause, consequences or mere existence of conflicting obligations may constitute a well-founded concern. This will ensure that the focus remains on resolving the relevant issues. Consequently, the present contribution offers a divergent conclusion.

The Court’s Request for Arrest and Surrender: Conflicting Obligations(?)

Sudan is not a party to the RS, but the International Criminal Court (‘ICC’ or ‘the Court’) has jurisdiction over crimes allegedly committed therein by virtue of article 13(b) and the referral of the situation in Sudan by the Security Council (‘SC’) (SC Res 1593). An investigation and the issuance of two arrest warrants for President Al-Bashir in 2009 and 2010 followed (see here and here), each accompanied by a request to states parties for his arrest and surrender (see here and here). However, many states parties considered their compliance with the Court’s requests – as required by article 89(1) of the Rome Statute – problematic.

As a non-party, all states are obliged under customary international law to refrain from arresting Al-Bashir by virtue of his immunities ratione personae (South Africa was also allegedly obliged to do so as a result of other international law obligations, but these need not be discussed for present purposes). State parties have waived their officials’ immunities insofar as these otherwise ‘bar the Court from exercising its jurisdiction over such a person’ (article 27(2)), but the RS cannot bind non-party states. Thus, although this has at times been questioned, article 98(1) seems applicable:

“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person … of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Relevantly, in 2009, the African Union (‘AU’) Assembly decided that its member states ‘shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute … for the arrest and surrender of President Omar El Bashir of The Sudan’ (see AU Assembly Decision 245, para 10).

Bashir’s numerous international visits gave the Court several opportunities to clarify why its requests were issued notwithstanding article 98(1). At first, the PTC ignored this provision entirely, simply noting that as a result of SC Res 1593 and the RS, states parties have ‘a clear obligation to cooperate with the Court’ (e.g. here). Next, in 2011 – when issuing its first decision regarding state party non-cooperation in the Bashir case – the PTC came to the untenable conclusion that:

“customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s [or Chad’s] obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para 42).

 In a previous post, Professor Akande criticizes this rationale whilst agreeing with the PTC’s conclusion. He argued that:

“the effect of the referral of the situation by the UN Security Council has the consequence that Sudan … is bound by the Statute (including by Art. 27). The effect of this would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute.”

As a result, Al-Bashir’s immunities would be inapplicable.

In a subsequent decision of 2014, the PTC did not follow this argument, but nevertheless shifted its approach, finding that in SC Res 1593:

“the SC decided that the “Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”. Since immunities attached to Omar Al Bashir are a procedural bar from prosecution before the Court, the cooperation envisaged in said resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities. […] Accordingly, the “cooperation of that third State [Sudan] for the waiver of the immunity”, as required under the last sentence of article 98(1) of the Statute, was already ensured by the language used in paragraph 2 of SC Resolution 1593(2005).”

The PTC’s reasoning remains as unconvincing as ever. By virtue of SC Res 1593 and Article 25 of the UN Charter (‘UNC’), it seems plausible that Sudan’s obligation to cooperate with the Court entails, inter alia, an obligation to waive Al-Bashir’s immunities (cf here). However, it does not follow that Sudan automatically complied with this obligation (see also here). Incidentally, by noting that ‘the question of personal immunities might validly arise’ (para 27), it backtracked from its finding on the customary exception and accepted the applicability of article 98(1). It nevertheless remained adamant about its novel claim, applying it also explicitly vis-à-vis South Africa and asserting that:

“there exists no ambiguity or uncertainty with respect to the obligation of […] South Africa to immediately arrest and surrender Omar Al Bashir.”

Professor Akande’s aforementioned view offers a potential alternative approach for the Court to adopt. However, as argued by Professor O’Keefe in comments to a previous post, the wording of article 98(1) and the PTC’s (implicit) acceptance of its applicability renders questionable the correctness of this approach. This argument also requires a relatively tenuous interpretation of the SC’s relevant decision and, for what it’s worth, Sudan cautioned the SC that it ‘is not party to the ICC. This makes the implementation of a resolution like this fraught with a series of procedural impediments’ (p. 12). Thus, the conclusion that the Court has acted ultra vires – or at least failed to convincingly explain why not – seems inevitable, and consequently states parties are, prima facie, under conflicting obligations.

Domestic Proceedings: The Supreme Court of Appeal’s Avoidance

In June 2015, Al-Bashir attended an AU Summit in South Africa. Despite the ICC’s findings and a High Court order for his detention, Al-Bashir departed freely once the Summit ended. Domestic proceedings continued with the Supreme Court of Appeal (‘SCA’) delivering its judgment almost a year later, finding that the government was required to arrest and surrender Al-Bashir. As I have argued elsewhere (in the forthcoming issue of Comparative and International Law Journal of Southern Africa), its conclusions are questionable (cf however a prior analysis here).

In summary, the SCA interpreted the RS’ implementing legislation as demonstrating:

“that when South Africa decided to implement its obligations under the Rome Statute […] it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made (para 103).”

The first finding (seemingly obiter), that immunities do ‘not constitute a bar to the prosecution of international crimes’ outside of the ICC cooperation context, is difficult to reconcile not only with the wording and purpose of the provision; certain constitutional provisions provide a further basis on which this finding can be questioned (see here). Section 232 thereof affords precedence to legislation over customary international law when the two cannot be reconciled, but section 233 requires that:

“[w]hen interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law”

and the SCA had accepted that under customary international law Al-Bashir was entitled to respect for his immunity ratione personae.

It is submitted that the SCA’s second finding is also questionable, given its unqualified breadth. As the SCA acknowledged, the implementing legislation was introduced to ensure South Africa’s compliance with its obligations under the RS ‘in terms of the said Statute’ (para 91). It would have thus arguably been reasonable to interpret the provisions pertaining to compliance with the Court’s requests and the concomitant irrelevance of immunities as applicable only in relation to requests issued in accordance with the RS, including article 98(1). It is arguably non-ideal for states parties (or their courts) to make autonomous decisions regarding the validity of the Court’s requests, even if not final (see article 119(1)), which is what would have been required of the SCA had it followed the above interpretation.

Conclusions

It is unfortunate but understandable – independently of other considerations – that the ICC’s inability to demonstrate the intra vires nature of its request and its unwillingness to acknowledge otherwise, accompanied by the SCA’s questionable conclusions, culminated in South Africa’s withdrawal. South Africa was also the first state party to seek consultations with the Court under article 97 but, even on this occasion, the Court was not particularly responsive to its concerns (see here, esp p. 8–10, 17–18). And in contrast to the withdrawals of Burundi and The Gambia that followed, South Africa had been directly faced with deciding between conflicting obligations (President Al-Bashir has not visited either of the two other states as a head of state) and was courteous enough to provide justification for its decision. Its withdrawal should thus not be readily dismissed.

Ultimately, the lesson to be learned on this occasion is for the Court. If it wishes to ensure its effectiveness and enhance its prospect of success, it must conduct itself in accordance with the powers afforded to it or at least acknowledge and address occasions on which it has not done so. Alternatively, if at all possible, it could convince its states parties (and hopefully the readers too) that it has acted intra vires. Perhaps the International Court of Justice will be afforded an opportunity to clarify matters, albeit in an advisory capacity (see also here). Relevantly, an argument for interpreting the scope of article 89(1) as limited to intra vires requests could be made, but this is not considered in detail at present.

Incidentally, this does not mean giving up on the Bashir case. By virtue of article 87(5)(a) it is open to the Court to invite Sudan to cooperate with it – it is yet to do so. Even if compliance therewith may be considered unlikely, Sudan’s international responsibility would then clearly be engaged. And insofar as the (temporary) inability to secure Al-Bashir’s presence at the Court constitutes an obstacle to the intention behind the SC’s referral, it could in effect oblige all states parties to cooperate with the Court, notwithstanding article 98(1). What has undoubtedly been shown to be an unviable option is disregard on the part of the Court for well-founded concerns regarding the permissibility of its decisions and the resulting obligations on states parties; even NGOs are reportedly for the first time voicing the view that Al-Bashir may benefit from customary immunities. Whether the Court has learned this lesson remains to be seen.