The low-down: South Africa before ICC over al-Bashir non-arrest

The path to The Hague

Joining the ICC in 2000, South Africa agreed to abide by the Court’s founding treaty, the Rome Statute, which requires member states to cooperate fully with ICC investigations and prosecutions, including for the arrest and surrender of persons subject to ICC arrest warrants.

The Rome Statute’s provisions on international cooperation and judicial assistance give ICC member states a critical role in the absence of an enforcement arm at the Court itself.

In passing the Implementation of the Rome Statute of the ICC Act (ICC Act) in 2002, South Africa further cemented its own standing in the greater Rome Statute system. National ICC legislation ensures states can effectively prosecute ICC crimes in the first instance, as per the Rome Statute principle of complementarity, and can provide full cooperation with the Court.

In 2009 and 2010, the ICC issued arrest warrants for al-Bashir, for all three ICC crimes: war crimes, crimes against humanity and genocide. While Sudan is not a member state, the Court's jurisdiction was made possible due to a 2005 UN Security Council (UNSC) resolution referring the situation in the Darfur region of Sudan to the ICC.

At the time of South African president Jacob Zuma’s May 2009 inauguration, South African officials noted that it would not be in al-Bashir’s interest to attend the ceremony given the country’s obligations as an ICC member state.

However, at an African Union (AU) summit the following July, AU member states, including South Africa, decided that they would not cooperate in the arrest and surrender of the Sudanese president, claiming al-Bashir is protected by diplomatic immunities referenced in Rome Statute Article 98.

In 2015, al-Bashir attended an AU summit hosted by South Africa in Johannesburg. Despite ICC requests, as well as domestic court orders to execute the arrest warrant against al-Bashir, petitioned by local civil society, South African authorities allowed him to make a hasty exit back to Sudan.

In subsequent litigation initiated by the Southern Africa Litigation Centre (SALC), both Pretoria’s High Court and the country’s Supreme Court of Appeal found that the failure to arrest al-Bashir was unlawful due to South Africa’s Rome Statute membership, its domestic ICC Act, and the Statute’s cornerstone provision on the irrelevance of official capacity. Rome Statute Article 27 prohibits immunities for heads-of-state and senior government officials.

In late 2016, ICC judges summoned South Africa to explain its failure to arrest al-Bashir.

Head of state immunity at heart of challenges

During the domestic proceedings on the failure to arrest al-Bashir during the AU summit, the South African government claimed head-of-state immunity under customary international law is in conflict with its Rome Statute obligations. It has also argued that it was not properly consulted at the time of the ICC requests to arrest and surrender al-Bashir.

In an annexed declaratory statement to its (since rescinded) notification to the UN of its withdrawal from the Rome Statute, South Africa said that being part of the ICC compromises its efforts to promote peace and security on the African continent, in particular citing what it described as “fundamental differences” between the African continent and many ICC member states on the issue of head-of-state immunity.

The anti-ICC campaign being conducted by some, but by no means all, African leaders began after the ICC issued arrest warrants for al-Bashir and gained momentum when ICC cases were opened against Kenyan politicians Uhuru Kenyatta and William Ruto in 2011, who would go on to become Kenya’s president and deputy, respectively.

The issue of immunity for sitting heads-of-state and high government officials is therefore at the heart of current challenges.

Consultations and immunities to be focus of April 7 hearing

Appearing for the state on 7 April, South Africa Minister of Justice Michael Masutha is expected to seek clarity on the application of Rome Statute Article 97, dealing with consultation processes around ICC cooperation requests, and Article 98, on consent to waiver of diplomatic immunities.

Rome Statute Article 97 obliges ICC member states to consult with the Court if a problem is identified that could potentially impede or prevent the execution of an ICC request, such as the one issued by the Court to South Africa prior to al-Bashir’s visit.

In May 2015, in light of al-Bashir’s planned visit to the AU summit, the ICC Registrar notified South Africa of not only its obligation to arrest al-Bashir, but also its obligation to consult with the Court over foreseen challenges to executing the arrest warrants. South African authorities requested a meeting with ICC officials in June 2015, at the time of the AU summit, to discuss this very matter. In response, the Court convened a meeting on 12 June 2015 to hear their concerns.

The day after the meeting, the Court found that South Africa was indeed obliged to carry out al-Bashir’s arrest. With the obligation deemed clear by ICC judges, on 14 June 2015 SALC filed a successful urgent application for the Pretoria High Court to block al-Bashir’s departure pending its decision on the same matter. Violating the High Court order, South African authorities allowed al-Bashir to leave the country on 15 June amid ongoing domestic hearings to clarify South Africa’s obligations.

With South Africa insisting that its 12 June 2015 meeting with ICC officials did not constitute an Article 97 consultation, the ICC’s governing body of states, the Assembly of States Parties (ASP), in 2015 entertained South Africa’s concerns that its right as a member state to be heard had not been honored. In response, the ASP Bureau in 2016 established a Working Group on the interpretation of Article 97’s consultation procedures.

The Article 97 Working Group discussions are set to continue through 2017. At the time of South Africa’s notification to the UN of its intent to withdraw from the ICC, the country indicated it would continue to engage on this discussion.

Even though requests by some civil society organizations, involved in the hearings at the domestic level, to make oral submissions have been rejected, they have submitted their views in writing and aim to attend the hearing. The hearing will be an important first opportunity for us all to follow the non-compliance finding process at ICC.

Next steps: States must enforce cooperation

Following the hearing, judges must decide if South African’s failure to arrest al-Bashir was a breach of its Rome Statute obligations. The judges’ decision could potentially offer enhanced guidance and preparedness in responses to future cooperation requests – and make the international community think twice before consorting with those suspected of war crimes, crimes against humanity, or genocide before the ICC.

However, while the judges can refer the matter to the ASP and the UNSC, mechanisms for the enforcement of cooperation in these bodies are extremely weak, if non-existent.

Significantly, the ICC judges have invited the UN to come and offer its take on states’ cooperation obligations regarding UNSC-referred situations, like that in Darfur, which up until now has received little support from the UN following the referral. In their decision convening the non-compliance hearing, the judges also invited all ICC member states to present their opinions on the issue.

Until such issues are addressed, non-cooperation and al-Bashir’s international travel, as seen last week in Jordan, may very well continue.

Civil society to attend 7 April hearing

The International Commission of Jurists (ICJ), represented by South African Justice Johann Kriegler, will be attending to observe the hearing on 7 April.

“The case is critical for ensuring the effectiveness of the ICC as an institution. The only means the ICC has of enforcing its orders is through the cooperation of States” said Sam Zarifi, the Secretary General of the ICJ. “The failure to arrest President Bashir and the subsequent efforts to withdraw from the ICC Rome statute raise important questions about South Africa’s commitment to the fight against impunity in Africa and globally” added Zarifi.

The ICJ had filed a brief with the South African Parliament calling on South Africa to remain a party to the ICC Rome Statute.

Monica Feltz, Executive Director of the International Justice Project will also be attending along with victims of the Darfur conflict.

Please contact communications@coalitionfortheicc.org to arrange media interviews with civil society experts and victims attending the hearing.