South Africa and the ICC: The Travails of ‘Enforcing’ International ‘Cooperation’

The repercussions of the Omar al-Bashir case go beyond the African continent and are relevant to discussions relating to the efficacy of international justice.

The International Criminal Court (ICC) recently ruled on the failure of South Africa to arrest and surrender Sudanese President Omar al-Bashir to the court. The repercussions of this case extend beyond the African continent and are relevant to discussions relating to the efficacy of international justice.

In the Asia-Pacific region, only 19 states have ratified the Rome Statute. However, developments pertaining to the law and practice of the court are relevant, with implications for states parties and non-state parties in the region. Cambodia and the Philippines (both state parties), as well as Myanmar are on the radar of the ICC. In addition, states in the region, including India and China (neither are state parties), have hosted al-Bashir despite the arrest warrant. While there has not been a referral by the United Nations Security Council (UNSC) relating to non-state parties in the region, it is not a far-fetched possibility.

The decision highlights the duties of state and non-state parties to cooperate with the ICC, immunities of heads of states, the dynamics of regional blocs related to international justice, interaction between domestic law and international law, as well as the relationship of the ICC and the UNSC. This case may be viewed as a litmus test in the enforcement action for referrals, and added impetus to argue for reform of the UNSC and its relationship to the ICC.

Al-Bashir and South Africa

Based on a referral from the UNSC on March 31, 2005 (UNSC Res 1593), the office of the prosecutor of the ICC took cognisance of the situation in Darfur from July 1, 2002, and commenced an investigation. Two warrants of arrest were issued for Omar al-Bashir (in 2009 and on appeal, in 2010), containing three counts of genocide, two counts of war crimes and five counts of crimes against humanity. Despite the issuance of these warrants, thus far, al-Bashir is free and continues to function as the head of state of Sudan. He has visited countries that are state parties to the Rome Statute, which have an obligation to arrest and surrender him to the ICC. South Africa ratified the Rome Statute on November  27, 2000, and is still currently a party to the ICC. While Sudan has signed the Rome Statute, it has not ratified the treaty, and has signalled the intention not to do so anymore. Hence, it is not a state party to the treaty.

Al-Bashir attended the African Union Summit in Johannesburg from June 13- 15, 2015. Legal proceedings for arrest were initiated and the high court ordered that al-Bashir remain in the country, pending the hearing of the matter. However, despite the order and assurances that he was still in South Africa, al-Bashir was permitted to leave the country. The high court, in its decision, affirmed the obligations of the South African government to arrest and hand over al-Bashir. On appeal by the government, the Supreme Court of Appeal of South Africa labeled the departure of al-Bashir from South Africa as ‘disgraceful conduct’ and in violation of the constitution.

ICC decision: Non-compliance and its (lack of) consequences

The ICC has scrutinised the actions of South Africa, in light of its failure to arrest and surrender al-Bashir while on South African territory. After hearings and submissions in April 2017, Pre-Trial Chamber II issued its decision on July 6, 2017. The decision was two-fold: findings regarding whether South Africa violated the obligation to cooperate under the Rome Statute; and if so, whether South Africa ought to be referred to the Assembly of State Parties (ASP) and/or the UNSC.

The case hinges not only on the lack of cooperation by a state party, but also the relevance of head of state immunity. Article 27(2) of the Rome Statute excludes official immunities from barring the jurisdiction of the court. Part IX of the Rome Statute relates to “International cooperation and judicial assistance”, elaborating on the role of states in facilitating the work of the ICC. State parties are under a “general obligation” to cooperate with the ICC (Article 86), as well as a specific obligation to comply with requests of the ICC. Article 87 (1)(a) provides that a state “shall” comply with requests for arrest and surrender. Article 87(7) details the consequences of a failure to cooperate, including a referral to the ASP and/or the UNSC (if the case was referred by the latter). Article 98(1) also provides that the court may not ask for arrest or surrender if this would violate international law obligations pertaining to immunity of officials of a third state.

The decision of the chamber regarding non-compliance with the obligation to cooperate addressed aspects of the immunity argument. The chamber held that as South Africa was a state party, Article 27(2) would apply, permitting the courts jurisdiction regardless of head of state status. Customary international law granting immunity to heads of state and other officials, as well as the terms of the African Union-South Africa Host Agreement were not applicable in this case. In regard to Sudan, the UNSC referral to the ICC would result in the application of Rome Statute obligations on Sudan, regardless of non-state party status. Hence, this would result in the ensuing rights and obligations (except for procedural aspects such as contributions to the court and participation in the ASP). Also as a result of the application of UNSC Resolution 1593, Article 98(1) did not apply. In obiter, the chamber clarified that the provision was limited to state party and a non-state party interactions. Placing Sudan in the position of a state party, therefore, precluded the requirement of a waiver of immunity and exception to the courts jurisdiction in Article 98(1). In sum, the court found that head of state immunity would not apply and would not bar South Africa from its obligations to arrest and surrender al-Bashir.

The pre-trial chamber concluded that while South Africa did not comply with its obligations under the Rome Statute, it however, did not merit a referral to the ASP and/or the UNSC. The chamber noted that the aim of a referral was to facilitate cooperation and to enable the court to function better. Furthermore, there was no automatic referral and this course of action was based on the discretion of the chamber. In dissecting the actions of South Africa, the chamber noted that it was the first state party to request consultations with the court to determine its legal obligations and that the delay in approaching the court was reasonable. The chamber was generous in its interpretation, despite the prosecutors allegation of legal impediments created by South Africa. The chamber also referred to the domestic legal proceedings within South Africa, which confirmed the obligation to arrest al-Bashir. In deciding not to refer the matter further, the chamber noted that in the six previous referrals to the UNSC, there had been no follow-up and a suggested referral mechanism had not materialised. Hence, there was limited benefit to be gained from a referral.

Internal dynamics, regional politics and institutional dimensions of international justice

Within South Africa, the backdrop of domestic litigation pertaining to not only the arrest of al-Bashir, but also the potential withdrawal of South Africa from the ICC is of significance. The South African government formally notified its withdrawal from the ICC on October 19, 2016. However, this was challenged in court, with the judgment of the high court of South Africa stipulating on February 22, 2017, that parliamentary approval is required prior to notification of withdrawal. The government then revoked the withdrawal notification on March 7, 2017. The ruling ANC party however reaffirmed the commitment to withdraw just days before the ICC ruling. The ICC decision may also harden the resolve to withdraw.

Based on the tenor of the ICC decision and its reception internally, it could provide further ammunition to argue for withdrawal, with obligations perceived as too onerous. However, the conciliatory tone of the chamber regarding the bonafide intentions of South Africa as well as its lack of referral to the ASP/UNSC may be a reason to reconsider withdrawal. The impact of the decision is not easy to discern, with a bland statement by the government, and the government declining to appeal the decision of the pre-trial chamber.

In conjunction, regionally, there are ongoing efforts by the African Union to encourage mass withdrawal of African states from the ICC. Much has been made of the threatened potential mass withdrawal, pursuant to the assembly resolution at the 28th African Union Summit in January 2017. In the time since the 28th summit, a significant number of African states have however reiterated their support for the ICC, or have cancelled their withdrawal (Gambia), adding to the confusion. The 29th AU summit concluded on July 4, 2017, with no reports (as yet) of any follow-up of the implementation of the resolution of the previous summit, as was required by the 28th summit resolution. The discussion seems to have been left off the agenda, and for a future summit.

The elephant in the room is the relationship of the UNSC and the ICC, and the arguments of the politicisation of international justice. Detractors of the court often conflate these two aspects with allegations of an over-emphasis on situations in Africa. In the chorus alleging a biased court, it is however important to note that five out of the nine situations under investigation relating to Africa (Democratic Republic of Congo, Uganda, Central African Republic (CAR), Mali and CAR II) are the result of self-referrals, i.e., initiated by the states themselves and not due to the UNSC referral or the prosecutors initiative.

While this distinction is important, a key factor in this instance is the UNSC referral of al-Bashir to the ICC. The fact that three of the five permanent members of the UNSC are not state parties to the Rome Statute is particularly problematic. As per the Rome Statute, the UNSC has the power to refer cases to the ICC (Article 13(b)), as well as defer any potential investigation (Article 16), both of which have been used. Darfur (2005) and Libya (2011) are the only cases so far based on referrals by the UNSC. For Darfur, state parties and non-state parties opted to vote for the resolution, with four abstentions. In the Libyan referral, the unanimous vote included non-state parties (such as India), voting for the resolution, believing that this would be the best chance to stem the violence. Hence, despite protesting the ability of the UNSC to refer matters, in reality states – including non-state parties – have supported this course of action. In other instances such as Syria, Sri Lanka and Yemen, the referral power of the UNSC has not been exercised when it arguably should have. While undoubtedly there are legitimate fears of a politicised referral and legal concerns relating to the substance of the UNSC resolutions, this is more attributable to flaws in the composition and functioning of the UNSC rather than the ICC itself. And this still does not vitiate the obligations that emanate from the Rome Statute in the event of such a referral.

Commensurate to this ability to refer is the obligation of the ICC to report violations of obligations to the UNSC. However, the disinterest of the UNSC in any follow-up of the actions of the ICC, emanating from the lack of cooperation is remarkable. The ICC has issued previous decisions on the lack of cooperation by various states for the failure to arrest and surrender Omar al-Bashir. These include Malawi (2011), Chad (2011 and 2013), DRC (2014), Sudan (2015), Uganda (2016) and Djibouti (2016), all resulting in a referral to the UNSC. However, no consequences have resulted from these referrals, despite pleas for action from the prosecutor. Hence, not referring the matter should be perceived as a vote of no confidence in the UNSC by the court.

Implications

These are testing times for the ICC, on its 15th anniversary. What makes this case significant is the interplay of multiple factors, including domestic and regional dynamics that impact the functioning of the court.

In the context of Asia-Pacific, the implications of this decision are that obligations for arrest and detention can apply to non-state parties, as well as state parties. Further, the deficiencies of the system of international cooperation may be linked to the ineffectiveness of the UNSC, providing impetus to the argument espoused by many in the region for UNSC reform. However, this is no substitute for political will to support international justice mechanisms, which many states in the region lack. If the ICC is to weather current questions of legitimacy and efficacy, and to be an effective justice mechanism, there must be a redoubling of efforts to support the institution, starting with cooperating with the court at the very least.

Priya Pillai is an international lawyer, with a PhD in international law from the Graduate Institute in Geneva. She has previously worked at the Red Cross, the International Criminal Tribunal for the Former Yugoslavia, and is now based in Manila.