Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.
The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. There are 4 aspects of Wallis JA’s lead judgment dealing with immunity. [Warning: This is a long post and it is point 4 below that is the most significant in my view.]
1. Immunity under the Agreement with the African Union
The lead judgment rejects the argument of the South African government that President Bashir was entitled to immunity under the agreement between South Africa and the AU regarding the hosting of the AU summit. The judge held that the agreement only dealt with immunity of members of staff of the AU Commission and delegates or representatives of other international organizations. That agreement and the Ministerial Order implementing it into domestic law did not, in his view, cover heads of states or representatives of states [paras. 40-48]. The wording of Art. VIII [quoted in para. 11] of the agreement is interesting. It provides that ‘The Government shall afford the members of the Commission and Staff Members, delegates and other representatives of Inter-Governmental Organisations attending the Meetings the privileges and immunities set forth in Sections C and D, Article V and VI of the General Convention on the Privileges and Immunities of the OAU’ (emphasis added). The emphasised words define the scope of persons on whom immunity is conferred and suggest that the Judge is right to confine the immunity to staff of international organizations. That this is so is then apparently confirmed by the fact that when the relevant South African minister transposed immunity under that agreement into domestic law, the relevant provision of the South African Diplomatic Immunities and Privileges Act 2001 used (Section 5(3)] only deals with the immunities of international organizations and their officials. However, when one looks at provisions of the OAU Convention referred to, though Section D, Art VI relates to the immunity of officials of the organization, Section C, Article V provides immunity for representatives of states to the organization and to conferences organized by the organization. This suggests that it is conceivable that South Africa did seek to provide for immunity of state representatives when entering into the hosting agreement with the AU but that it was not careful enough in drafting the agreement to use words that would achieve that effect.
2. Immunity of Heads of States under Customary International Law
The second aspect of the lead judgment dealing with immunity is a detailed examination of whether under customary international law there is an exception to the rule according immunity to serving heads of states. Consideration of the position in customary international law was important because Section 4(1)(a) of the South African Diplomatic Immunities and Privileges Act 2001 provides that:
“A head of state is immune from the criminal and civil jurisdiction of the Courts of the Republic, and enjoy such privileges as – (a) heads of state enjoy in accordance with the rules of customary international law . . .”
After an impressive consideration of the debates regarding whether international law continues to provide immunity ratione personae in cases where the head of state is alleged to have committed international crimes and whether immunity can be set aside in cases of alleged violations of jus cogens norms,Wallis JA held that:
“ . . . I must conclude with regret that it would go too far to say that there is no longer any sovereign immunity for jus cogens (immutable norm) violations. . . . In those circumstances I am unable to hold that at this stage of the development of customary international law there is an international crimes exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries and before foreign national Courts.
Ordinarily, that would mean that President Al Bashir was entited to inviolability while in South Africa last June. But SALC [the respondent in the appeal] argued that the position was different as a result of the enactment of the Implementation Act. I turn to consider that contention.” [Paras. 84-85]
With that the judge ended his consideration of international law and turned to domestic law which provided the ratio of his decision.
Although I agree with the conclusion on customary international law (see this 2010 EJIL article), in my view it was wrong for the judge to stop his consideration of the position in international law (even in customary international law) without considering the arguments made by the respondents and amicus curiae that relevant United Nations Security Resolutions, in combination with the Rome Statute, and/or the Genocide Convention had removed the immunity of President Bashir. The argument that Security Council resolution 1593 had removed the immunity has been accepted by the ICC Pre-Trial Chamber in its latest decisions regarding Bashir (see here and here and previous EJIL:Talk commentary here). Although the judge mentions these arguments he fails to state his view on those arguments [see para. 106] and seems to regard them as ultimately irrelevant with regard to the consideration of the position under customary international law. Although the arguments about SC resolutions and the Genocide Convention relate to the effect of treaties on Bashir’s immunity, they are also relevant to the position under customary international law and should have been dealt with in the section of the judgment dealing with customary international law. This is because a state may not rely on rights under customary law where those rights have been amended, removed or rendered inapplicable by treaties that are applicable to that situation. Therefore, it is reasonable to state that under customary international law, a head of state does not possess immunity in cases where that immunity has been waived or removed by treaty. So, if it is correct to conclude that by virtue of the UN Security Council resolution 1593 which referred the Darfur situation to the ICC and/or by virtue of the Genocide Convention, President Bashir does not have immunity from arrest in states cooperating with the ICC (and I have argued here that these arguments are correct), then under customary international law he does not enjoy immunity in such a situation.
3. Immunity under South African Law from Arrest and Surrender to the ICC
In the main aspect of the lead judgment the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, South Africa was entitled to arrest President Bashir and surrender him to the ICC [paras. 96-101]. I say that this is the main aspect of judgment in that it constitutes the ratio decidendi and is also the part of the decision on which the judges were unanimously agreed. Reliance was placed on Section 10(9) of the Act which provides that:
“The fact that the person to be surrendered is a person contemplated in section 4 (2)(a) or (b) does not constitute a ground for refusing to issue an order [for surrender to the ICC] comtemplated in subsection (5).”
Section 4(2)(a) of that Act, which I will discuss below, includes reference to heads of states or governments. All the judges accepted that Section 10(9) on its face removes any immunity with regard to proceedings relating to surrender to the ICC and indeed it does. They also rejected an argument that this provision deals only with surrender but does not remove immunity from arrest where the person is wanted by the ICC. As the judges noted, this argument is absurd as s. 10 only applies to person who have been arrested and brought before a magistrate in proceedings for surrender. In what seems to me to be compelling reasoning, Wallis JA held that if the argument that s. 10(9) applies only to surrender but not to arrest were accepted:
“ . . . s. 10(9) would serve no purpose at all. It would be entirely redundant, because there would be no possible situation in which a person brought before the magistrate under s 10(1) would be a person referred to in ss 4(2)(a) or (b). Needless to say such an interpretation is to be avoided.” [para. 102. See also paras. 122-3 of the concurring judgment]
This straightforward interpretation of domestic law, agreed upon by all five judges, was sufficient to dispose of the matter. All the judges agreed that to the extent that the ICC Implementation Act provided for a lack of immunity, it applied to matters covered by that Act and that Section 4(1) of the Diplomatic Immunities and Privileges Act [DIPA] did not apply to matters overed by the Implementation Act. In short, the ICC Implementation Act was lex specialis with regard to mattters that it covered [paras. 102 & 123]. The only point of disagreement among the judges was whether the discussion of customary international law and of the position under the DIPA was necessary at all. Wallis JA and the majority thought it was [see footnote 90] in order to establish whether there was any immunity which the Implementation Act was creating an exception to. Given the wording of the Implementation Act rejecting immunity, the minority thought it was not necessary to consider the position under customary international law and the DIPA [para. 115]. In my view, the answer lies somewhere in the middle of the position established by both camps. For South Africa, the position on immunity depends on what the relevant domestic legislatation says. However, that legislation, including the Implementation Act, should be interpreted in line with international law, not only because Section 233 of the South African Constitution says so, but also because in this area the DIPA incorporates international law into domestic law. For this reason, a discussion of the position under customary international law is useful to establish whether heads of states not party to the Rome Statute are immune and to see whether that position might be reflected in an interpretation of the Implementation Act. Thus, in a case dealing with a head of state not party to the Rome Statute, who is wanted by the ICC, and where there is no relevant Security Council referral, immunity ought to continue to be given effect to in the light of the position under customary international law.
4. Immunity of Heads of State from Prosecution in South Africa for International Crimes
The most remarkable aspect of the judgment is that the judges did not just confine themselves to the application of domestic law as it relates to surrender to the ICC. Both the majority and the concurring judgments go further and express the view that under the South African Implementation Act, foreign heads of State accused of international crimes committed abroad may be arrested and subject to domestic prosecution in South Africa. Although Wallis JA concluded that, under customary international law, there is no international crimes exception to immunity ratione personae of heads of states, he also concludes that South Africa has removed such immunity under Section 4(2)(a) of the Implementation Act. It is important to note that in addition to providing domestic law basis for South Africa’s cooperation obligations under the ICC Statute, the Implementation Act aims to provide a basis under which South Africa can prosecute ICC crimes [so as to avoid ICC complementarity jurisdiction]. Section 4(2) provides that:
“Despite any other law to the contrary, including customary and conventional international law, the fact a person –
(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official: or
( b ) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior,
(i) a defence to a crime; nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.”
As has already been mentioned Section 4(2) is relevant in defining those persons in respect of whom immunity is removed under Section 10(9) of the Implementation Act. However, the judges did not just use Section 4(2) in relation to proceedings dealing with surrender to the ICC. Their pronouncements went much broader. Wallis JA held that:
“Recognition of head of state immunity alongside the provisions of s 4(2) to preclude someone from being brought to trial in South Africa would create an anomaly. Under s 4(3)(c) a South African Court has jurisdiction to try someone for an international crime if they are present in the territory of the Republic. In such a trial it would be no answer for the accused to raise immunity either ratione personae or ratione materiae. . . .
A construction of s 4(2) that would exclude claims of immunity if a person was being tried before a South African Court, but would not exclude immunity in seeking to bring that person to trial before that Court would in my view be a serious anomaly. The ordinary principle of interpretation is that the conferral of a power conveys with it all ancillary powers necessary to achieve the purpose of that power. The purpose of the power to prosecute international crimes in South Africa is to ensure that the perpetrators of such crimes do not go unpunished. In order to achieve that purpose it is necessary for the National Director of Public Prosecutions to have the power not only to prosecute perpetrators before our Courts, but, to that end, to bring them before our Courts. This is also consistent with the constitutional requirement that the Implementation Act be construed in a way that gives effect to South Africa’s international law obligations and the spirit, purport and objects of the Bill of Rights.”
Ponnan JA for the concurring minority also took the view that since s 4(2) of allows for domestic prosecution of heads of State in South Africa it would be anamolous if they could not be arrested and surrendered to the ICC. He stated:
“Recognition of head of State immunity alongside the provisions of s 4(2) to preclude someone from being brought to trial in South Africa would create an intolerable anomaly. In terms of s 4(2) of the Implementation Act, a head of State may be arrested and prosecuted before South African domestic courts. The same head of State may be prosecuted before the ICC in terms of Article 27 of the Rome Statute. But when the ICC requests South Africa to arrest and surrender that head of State to the ICC for prosecution, it would be precluded from doing so by virtue of the suspect’s immunity. The immunity would not protect him against arrest and prosecution in South Africa but inexplicably protects him from an arrest in South Africa for surrender to the ICC.” [para. 122]
On this view, a head of state could not rely on immunity ratione personae to bar either arrest in South Africa or trial where he is accused of the international crimes provided for in the Implementation Act. Wallis JA’s view on the matter seems rather surprising in view of the cautious approach taken with regard to customary international law and especially the statements that it is not for domestic courts to develop customary international law. However, at this stage in the judgment he is speaking of what domestic law requires and, seems quite willing to reach a conclusion that would put South Africa in breach of what he finds to be its obligations under customary international law. He stated that:
“I conclude therefore that when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act 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 the 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. I accept, in the light of the earlier discussion of head of state immunity, that in doing so South Africa was taking a step that many other nations have not yet taken. If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern. It is wholly consistent with our commitment to human rights both at a national and an international level. And it does not undermine customary international law, which as a country we are entitled to depart from by statute as stated in s 232 of the Constitution. What is commendable is that it is a departure in a progressive direction.” [Emphasis added]
It must be said that these conclusions regarding the lack of immunity ratione personae in South Africa, in cases where heads of state are accused of international crimes are particularly odd given that the wording of Section 4(2) does not speak of procedural immunity but rather say that official position is not a substantive defence in domestic prosecutions. Section 233 of the South African Constitution provides that:
“When 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.”
Given that Wallis JA had established that the position in customary international law is that immunity ratione personae applies even in cases where heads of states are accused of international crimes, it is not clear why Section 4(2) of the Implementation Act is not given a meaning which aligns more closely with the words used and with customary international law.
What is the international lawyer then to make of the case in considering whether it counts as the start of a possible trend towards establishment of a new rule of custom on immunity ratione personae? The first point to make is that by the judges own admission South Africa would act in breach of international law if it were to allow for arrest (other than in cases where it was fulfilling an ICC cooperation request) and prosecution of heads of states. Indeed, the ICJ’s decision in the Arrest Warrant case finds that the mere issuance of an arrest warrant would be a breach of international law. Second, any South African arrest would be relevant state practice in assessing custom. Third, the key question is whether there would be opinio juris. It is hard to argue that there is opinio juris supporting a new rule of custom when it is accepted that the practice is in breach of the customary international law. This raises interesting questions about how custom changes and what counts as opinio juris.
In reaching these conclusions about domestic prosecutions in South Africa, those who brought the proceedings seem to have obtained more than they argued for. As already noted, Section 4(3) of the Implementation Act provides for South African universal jurisdiction over international crimes and the decision of the South African Constitutional Court in the National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (2014) establishes that the South African Police Service is not only entitled to, but indeed has a duty (subject to certain limits) to investigate international crimes even when the alleged perpetrator is not in South Africa. When that broad principle of universal jurisdiction is combined with a lack of immunity, the Bashir judgment puts South Africa in the same place that Belgium was in prior to the Arrest Warrant decision. Whether there will be wide ranging attempts to investigate and prosecute heads of state in South Africa remains to be seen.