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South Africa’s Withdrawal: A Lesson Learned?

Published on December 6, 2016        Author: 

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.

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9 Responses

  1. Great post, Niko. I agree with everything you say so I am going to ask a slightly different question, to which Professor O’Keefe alluded in his comments on Darryl Robinson’s post http://www.ejiltalk.org/take-the-long-view-of-international-justice/.

    What exactly are the powers of the Security Council?

    You say, and I agree, that had the Security Council expressly waived Bashir’s immunities, then the whole immunity problem would disappear. Put differently, all the SC has to do is say those ‘magic words’… yet it has declined to waive Bashir’s immunities for many years, despite there being compelling reasons to do so (it has of course declined to do a lot of other things in relation to the Darfur referral).

    While I accept this conclusion, I wonder about the legal basis of the Security Council’s ‘magical’ powers to waive immunities (I use the words ‘magical’ in an avowedly provocative manner here). The standard response I’ve found in the literature is art. 103 of the UN Charter – boom, problem gone, moving on…

    But is it that simple? What work does art. 103 do in this specific set of circumstances? It brings us back to the debate about the Security Council’s powers vis-a-vis the ICC –> can the SC invoke art. 103 and ask the ICC to investigate crimes committed before 2002? This would violate a foundational principle in the Rome Statute (art. 11 (1) + 126, non-retroactivity), yet the legal issue seems very similar: why would the art. 103 argument not work in relation to art. 11 (1) + 126 if it supposedly works with respect to art. 98?

    The other big question I have is with respect to state practice and opinio juris. If this legal question is submitted to the ICJ, as more and more people are suggesting it should, what legal weight should be given the fact that African states parties have now repeatedly declined to arrest Bashir (state practice) and the only reasonable interpretation of these acts (omissions) is that it was done out of a sense of legal obligation (see e.g. DRC’s submissions to the ICC in Bashir case, citing AU resolutions and conflicting legal obligations + other states have invoked the same AU resolutions). There is now clear and arguably consistent state practice on the part of African states affirming Bashir’s immunities in this case. How does that relate to the SC’s powers to override Bashir’s immunities?

    I would be very curious to hear your thoughts on these two points.

  2. Kriangsak Kittichaisaree

    Two points.
    (1) The UN Security Council will never waive the personal immunity of the incumbent head of State. At least 2-3 Permanent Members of the UNSC have been consistent in their position that incumbent heads of State are entitled to personal immunity as a matter of customary international law. For them, waiving such immunity would create ‘a very bad precedent’ which is likely to make their own heads of State prime targets for prosecution in domestic criminal court and/or the ICC. These States have veto in the UNSC.

    (2) The ICJ interprets international law conservatively. On-going trends against impunity do not necessarily translate into the end of immunity. It is possible that the ICJ will take a look at Art. 103 of the UN Charter and decide/
    advise that “Yes, UN Charter obligations override those under other instruments(or even customary IL?)”. But the ICJ might say that if, pursuant to the relevant provisions of the UN Charter, the UNSC wishes to strip an incumbent head of State of his/her personal immunity under customary IL (see, the Arrest Warrant case) for that person to be surrendered to the ICC pursuant to the relevant provisions of the Rome Statute, the UNSC would have already done so. Hence, in the ICJ’s opinion, no conflict between the Rome Statute, customary IL, the UN Charter etc.

    Don’t get me wrong. I hate impunity, but this is the crazy world in which we live!

  3. Thank you Niko for this interesting post!
    I think Patryk is raising a very important (yet sometimes overlooked) issue regarding the powers of the Security Council vis-à-vis the ICC.

    Since I have dealt with these issues in my PhD thesis on “The Legal Nature of UN Security Council Referrals to the International Criminal Court involving Non-States Parties to the Rome Statute” (currently under review at the University of Vienna), here some thoughts:

    The legal nature of the referrals is best conceptualized as a form of delegations of powers (using Dan Sarooshi’s terminology) from the SC to the ICC. It follows that the powers of the SC have to be determined on the basis of the UN Charter and its Chapter VII powers. This has to be separated from the question whether and how the ICC can act upon the referral. The ICC can only act on the basis of its constituent treaty (ie the Rome Statute). This is why the inclusion of Article 13(b) into the Statute was legally required. It also means that even if the SC does possess the powers to ask the ICC to investigate crimes committed before 2002, the ICC would not be (legally) able to act on it (Article 11(1) Rome Statute).

    Article 103 UN Charter does not help. Art 103 addresses only UN Member States, and the UN Charter cannot impose obligations on another international organization that go beyond its constitutional treaty. Art 103 just makes clear that, from the perspective of the UN Charter, its provisions will prevail over any other conflicting obligations of Member States. It does not and cannot enable an International Organization to act beyond its constituent treaty (as we saw in the Kadi cases).

    The question of personal immunities is different for the following reasons. The referral did not turn Sudan into a state party, so Art 98 is applicable. Would the SC expressly remove personal immunities, Sudan is simply barred from invoking them by virtue of the binding effects of the SC referral under the Charter (which is binding on Sudan).
    (The Relationship Agreement does not alter that conclusion.)

    Any thoughts?

  4. Darryl Robinson Darryl

    This is a valuable post on an important topic. As we have all seen, there is a proliferation of plausible views on the interpretation of Art 27/98. I would simply like to add to the conversation here that the later PTC analysis is among the plausible interpretations. There are three steps to this view:

    1) You mentioned Roger O’Keefe’s analysis, but in that discussion he — with admirable grace and integrity — acknowledged that key parts of that analysis might not fly after all, when I pointed out how the Rome Statute consistently uses different terms for states not party and “third states”. I would add here the consistent usage of “third state” (93(9)(b), 98(1), 108(1)).

    2) One could nonetheless insist on waiver if one says that the ICC needs waiver from states parties as well. That was discussed by delegations and rejected. Art 27(2) was added to the classic formula in Art 27(1). The idea is that states subject to the obligations don’t have an immunity opposable to ICC surrender requests, so you don’t need specific “waiver”.

    3) The hardest, most controversial step is the significance of the UNSC ordering Sudan to “cooperate fully”. Does that mean just Part 9? Or does it mean ALL the cooperation obligations – including arts 3(3), 4(3), 4(4), 18(5), 19(8), 19(11), 27(2), 48, 54(2), 56, 57(3), 59, 64(6), 75(5) and 109? I suggest “fully” means “fully” – it means all of the cooperation obligations. People asked above what magic formula the UNSC should use to remove immunity; in the ICTY and ICTR resolutions the formula that was seen as adequate was: “shall cooperate fully”.

    I realize the above three steps are explained too succinctly (I am trying to keep comment short). For more see Cryer et al, Introduction to ICL 556-561.

    Having said all of that, I acknowledge that there are merits to the many other analyses too. There are many intelligent views. Its a shame that Art 27(2)/98 rely on so much elliptical analysis. I just wanted to stake out that the ICC’s interpretation of its own statute should not be too lightly dismissed. I agree that an ICJ decision might be helpful, especially since there is so much contention. Regardless of whether the ICJ affirms or disagrees with the ICC, it would help remove a point of contention. I agree very much with Niko that reducing that contention is important.

  5. Kriangsak Kittichaisaree

    Darryl, the hardest part is indeed the hardest part. The ICTY and the ICTR are set up under Chapter VII of the UN Chater and all UN Member States are bound to comply with the exercise of their mandates. The ICC is set up by a treaty although the role of the UNSC and Chap VII of the Chapter is implicated in that treaty. But please recall the Art 98 agreements the US has concluded with so many States so as to protect US nationals from being surrendered to the ICC while the US is not party to the Rome Statute — something the US or any State would not have been able to do regarding the ICTY or ICTR.

  6. Hannah Woolaver

    Hi Niko, thanks for very much for an interesting post. I’m an adherent to Dapo’s view of the relationship between Art 27 and 98, which of course is well trodden ground here so I don’t need to go over that. Otherwise I generally agree with what you’ve expressed in the post.

    I did, though, want to follow up on what Patryk said about there being consistent African State practice respecting Bashir’s immunity. While the practice of the AU has certainly been consistent in opposing Bashir’s arrest, I would challenge whether continental State practice has been so. The South African Executive itself on several occasions (e.g., in relation to whether Bashir would get an invitation to Zuma’s inauguration celebrations in 2009) has clearly stated that Bashir’s immunity was not applicable to South Africa’s obligation to execute the ICC arrest warrant. Also, as we know, domestic court decisions constitute State practice, and the South African Supreme Court of Appeal decision clearly rejected Bashir’s immunity. The SCA decision is now final (the Executive having withdrawn its appeal), and therefore must be taken into consideration as State practice as well (alongside a consistent string of several High Court decisions also rejecting Bashir’s immunity in). Beyond South Africa, there are other African States that have supported the ICC’s judicial determinations that Bashir is not immune from arrest or prosecution at the ICC – Botswana being a good example. So, I would argue that the position isn’t as settled as the AU resolutions might lead us to believe.

  7. Thanks, this is an interesting discussion. I wanted to follow up on two points:
    1) Hannah, I think you raise an important point: what exactly should count as state practice? You say, “as we know” court decisions count as state practice. But my understanding is that this is not that clear-cut. I am not an expert, so I would be happy to be proven wrong, but from what I’ve read there is debate as to what significance court decisions have/should have for determining state practice/opinio juris. I say this merely because “as we know” seems to suggest this is settled, and I don’t think it is.

    Turning to the specific case you mentioned, let’s keep in mind that the Supreme Court of Appeal expressly rejected arguments grounded in international law and decided this case on purely domestic South African law, which may or may not depart from customary international law. The question is thus how this argument helps us ascertain the existence of a customary international law rule? It’s a tough one, but I would be curious to hear your thoughts.

    Most importantly, the point I was making was not about the AU itself. The AU has consistently affirmed that Bashir has immunity and that carries weight, of course, but what’s far more important is that a number of states, Chad, Malawi, DRC, Kenya, Uganda etc.. have now acted (refused to arrest) and stated that this was done out of a sense of legal obligation (opinio juris). That for me is far more important than the AU’s resolutions which merely form the backdrop to this consistent (arguably) state practice. You do, however, raise an important point – South Africa did say in 2009 that it would arrest Bashir if set foot on South African soil… I am not aware of other states who have made similar declarations, but of course the question is how such statements should be factored into an assessment of customary international law.

    2) Professor Robinson avoids the question about the source of the Security Council’s powers by focusing on the ‘magic formula’. This is not the point. The question is what allows the Security Council to make such determinations and how that relates to the ICC Statute. I don’t think art. 103 is the killer argument people make it out to be, and Gabriel seems to be hinting at a different reading of this provision. Also, drawing parallels between the ICC and the ICTR/ICTY only gets us so far – they have different legal bases (and different rules on immunity), which is why we are having the debate about Bashir’s immunities in the first place.

  8. Hannah Woolaver

    Thanks for your reply, Patryk. In the immunity context especially, domestic court decisions are heavily relied on as good evidence of State practice. Pinochet is a prime example. The ICJ, for instances, engages in analysis of domestic court decisions explicitly as evidence of State practice, including Pinochet and other domestic decisions, in the Arrest Warrant case, leading it to its ultimate conclusion of there being no customary exception to immunity ratione personae.

    In terms of the SCA decision and its impact on State practice, it is a tricky case as Wallis JA specifically rejects a role in the formation of customary international law. Nonetheless, the result is the non-adherence to the claimed immunity for Bashir. At the very least, therefore, it cannot be put in the corner of those looking for State practice supporting respect for Bashir’s immunity. Alongside the Executive’s 2009 statement rejecting Bashir’s immunity, we also shouldn’t ignore the previous High Court decisions, or the Constitutional Court’s earlier opinion in another case, the ‘Zimbabwe Torture Docket’ case, where it rejected immunity for international crimes(admittedly obiter). As a result, South African practice is clearly mixed – but the weight of domestic South African State practice does seem to fall on the side of rejecting Bashir’s immunity. I would argue this despite the high profile nature of the Executive’s refusal to arrest in the 2015 – a refusal which was justified on an ever-changing array of grounds (many of which had nothing to do with customary international law), and was immediately and repeatedly rejected as unlawful by domestic courts.

  9. Thank you all for your kind words and interesting comments above.

    Patryk, you raise some interesting questions. With regard to the first, I agree with much of what Gabriel said. While the SC may decide to refer a pre-2002 situation to the ICC, its decision would only be relevant for the ICC to the extent that the RS says so (e.g. art 13(b)). Art 103 does not change this. The ICC’s jurisdiction must always be exercised ‘in accordance with the provisions of [the RS]’ (art 13 chapeau), including the provisions pertaining to non-retroactivity. As for the second, I don’t think this practice affects the SC’s powers, insofar as it can oblige states to act inconsistently with their customary obligations (see Ruben Leiæ & Paulus, in Simma et al, Charter of the United Nations: A Commentary (3rd edn, 2012) 2110, §§66–69 and fn 152), but did not do so in the relevant referral. This leads me to Professor Robinson’s comments and the effect of the SC’s referral on Bashir’s immunities.

    Professor Robinson, according to ‘Introduction to ICL’, the PTC’s analysis is plausible because ‘[b]y requiring a State to cooperate fully, the Security Council creates the same situation as [with regard to the ICTR/ICTY]: the Security Council has subjected the State to a regime which overrides its immunities’ (pp. 559–560). However it seems to me that the situation is more nuanced than this.

    In the context of the ICTR/ICTY the SC imposed an obligation on all UN member states to ‘cooperate fully’ with the tribunals. Thus, states were obliged to waive their officials’ immunities and other states were obliged to cooperate with the tribunals’ requests, even if this conflicted with other obligations (UN Charter, art 103). There was no ‘magic formula’ but rather the imposition of a superseding obligation on all states to cooperate.

    Under the RS, states parties are obliged to cooperate with the Court’s requests, but this does not take precedence over other obligations, as acknowledged implicitly by art 98. State parties have implicitly waived their immunities inter partes by consenting to art 27(2), so requests by the Court to surrender nationals of states parties are not in breach of art 98(1). However, in my view, the SC referral does not, in and of itself, have an equivalent effect.

    To my mind, SC Res 1593 has two relevant consequences: (i) art 27(2) applies by virtue of RS art 13 (as does art 98); (ii) Sudan is obliged to waive its officials’ immunities (precisely so that the Court can proceed with requests for surrender). The obligation incumbent on states parties to respect Bashir’s immunities remains unaffected insofar as Sudan has not complied with its obligation; the mere applicability of art 27(2) does not necessarily affect states parties’ obligations – this would render art 98 meaningless.

    I appreciate the argument that by giving the Court jurisdiction and making art 27(2) applicable the SC intended to diminish the scope of state parties’ obligations and render Bashir’s immunities unopposable to them but, if so, I am not sure why it would not make this clear by creating a parallel legal basis for states parties’ obligation to cooperate with the Court (notwithstanding other obligations), which would then take precedence over other obligations and increase the likelihood of achieving the (presumed) intended aim.

    Nevertheless, as you said, there are various views on the matter and I hope that this point of contention is reduced in one way or another.