The ICC’s immunity debate – the need for finality

In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means. Indeed, in its written submissions filed with the PTC the South African government expressly made the point that the issues were sufficiently important that if the decision went against South Africa, the matter should proceed automatically for final determination on appeal.

The need for a final judicial settlement remains imperative for a number of reasons.

The PTC’s decision is not a unanimous one; and the reasoning by the minority judge confirms that there is no clear legal position (despite the majority suggesting otherwise) on a number of contested points of law. Second, the problem of Bashir and his travels beyond Sudan are not limited to South Africa – it is clear that he intends to continue to travel to States Parties of the Rome Statute, and if he travels again, particularly to another African country that is a State Party, that state may face a similar norm conflict. Third, there can be no serious debate that the question of immunities of heads of state remains one of the most pressing issues before the ICC – that was so before the PTC decision of 6 July (with countless academic articles offering differing legal conclusions, not helped by conflicting PTC ICC decisions that preceded the 6 July decision against South Africa). While the 6 July PTC decision presents itself as the answer to the legal questions arising, it cannot pretend to be the last word on the matter – and notably the AU is likely to weigh in on the PTC’s decision following a meeting in September this year, amidst recent confirmation at the ANC policy conference that South Africa will withdraw from the ICC, in part because of the Court’s position on immunities.

In that climate, a final conclusive determination on the legal issues remains imperative. In this respect, there are a number of possible pathways to a final judicial determination on the matter. The first possibility is a decision by the Appeals Chamber of the ICC. The PTC decision is subject to appeal by South Africa. While the formal time period for noting an appeal has passed, South Africa may well seek condonation for a late filing. In our view, if it seeks to appeal, the ICC should accept the appeal with open arms as should all supporters of the international criminal justice project. If South Africa does not appeal, there remains the possibility that Jordan, in the likely event that the PTC decides that there is a duty on Jordan to arrest Bashir, could also appeal the decision to permit the ventilation of the legal question. While the rules do not expressly provide for the Appeals Chamber to take up the matter, given the importance of the issues, the Appeals Chamber might also decide to hear arguments on the issues. Finally, the Assembly of States Parties could itself resolve to submit the matter to the Appeals Chamber for resolution. A decision by the Appeals Chamber which resolves outstanding contradictions pertaining to cooperation with the ICC and the rules on immunity would enhance the integrity and legitimacy of the Court.

There also remains the possibility that the International Court of Justice (ICJ) may be approached, either by the General Assembly or the UN Security Council, to provide an advisory opinion on the matter. An advisory opinion from the ICJ on this question would have both advantages and disadvantages. One advantage is that, as a court of general jurisdiction, the ICJ may be best placed to take a holistic view of all areas of international law. The disadvantage, however, is the real risk of creating tension between two independent courts of international law.

Whatever pathway is followed, the point is that the issues of substance that remain for final determination are simply too important to be shut out by fealty to formalities. There is a clear need to continue to ensure that the concerns of states are respectfully and effectively considered by the Court.