Al-Bashir, the ICC and South Africa

The past weekend The Republic of South Africa hosted the 25th African Union summit. As heads of state gathered in Johannesburg, in particular the whereabouts of Sudanese President Omar Al-Bashir was the object of much attention. In light of the arrest warrants issued in 2009 and 2010 against Al-Bashir the International Criminal Court had called for his detention by South Africa should he enter the country. Over the weekend the focus shifted from the question “whether Al-Bashir would appear” to “whether Al-Bashir would be allowed to leave again” as the High Court in Pretoria  - prompted by a lawsuit from the ngo South African Litigation Center - ordered that Al-Bashir be prevented from departing from South Africa pending court proceedings. Before any action to detain him was taken, Al-Bashir returned to Sudan where he triumphantly appeared in public.

Two legal issues are particularly pertinent in this respect: the extent of South Africa’s obligations under international law and the question of the legal status of international obligations in the internal constitutional order. For the present purposes most attention will be given the former.

Sudanese President Omar Al-Bashir

Under the customary rules of international law incumbent heads of state cannot legally be detained by any state as by virtue of their position as representatives of a state are protected by immunity. The protection is not for their personal benefit but serves to ensure the effective performance of their functions on behalf of their respective States. This was stressed by the International Court of Justice when it concluded in 2002 that a Belgian arrest warrant for an incumbent minster of foreign affairs was illegal under international law.

In the Arrest warrant case the ICJ also explained that immunity would not bar criminal proceedings before certain international criminal courts: When the United Nations Security Council established the Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) immunity was explicitly excluded. A similar provision was included in the Rome Statute for the International Criminal Court in 1998.

As a party to the Rome Statute South Africa is - as indicated by Article 86 - subject to a general obligation to cooperate with the ICC. Specifically Article 59 provides that “A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws”.  In relation to the question of immunity Article 27 paragraph 2 of the Rome Stature expressly provides that "immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person".

In light of these provisions it seems to be beyond doubt that South Africa was in breach of its obligations in not apprehending Al-Bashir – and probably also if prior indication of immunity was given.

Why, then, did South Africa not abide by its international obligations? Why did South Africa guarantee immunity for participants in the African Union summit and why was Bashir not apprehended or at least prevented from leaving South Africa? One explanation is that Al-Bashir since the arrest warrants have led a campaign against was has been described as ICC imperialism and anti-African bias. This would seem to find some support in the numbers: the first nine cases concerned eight states - all on the African continent. However, this does not take into account that half of the states initiated the proceedings themselves (Central African Republic, Democratic republic of Congo, Mali and Uganda), that two were referred by the UN Security Council (Darfur and Libya) and that two were initiated by the ICC (Ivory Coast and Kenya). Subsequently the ICC has begun investigations in a number of countries all over the world (Afghanistan, Columbia, Georgia, Honduras, Iraq, Palestine, Ukraine, Guinea and Nigeria). The criticism against the ICC has taken various forms in various fora: The (South African) Chair of the African Union Commission has suggested – with a view to post-apartheid transitional justice - that it would be more fruitful to focus on reconciliation and truth rather than prosecution; in South Africa the ANC has argued that non-signatories can commit gross human rights violations without being subject to the courts attention while other countries who  in pursuit of human rights protection are signatories to the Rome Statute “unjustly bear the brunt” of ICC decisions. This criticism seems somewhat misguided since that it precisely the point in signing the Statute: voluntarily subjecting the state and its citizens to the jurisdiction of the ICC.

Finally, in relation to the internal legal aspects of the non-detention of Al-Bashir the High Court held that not executing the order was unconstitutional under South African law.