Michael Power | South Africa’s international and domestic legal obligations to arrest Omar al-Bashir

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14 June 2015 – On Sunday, 14 June 2015, the Pretoria High Court heard an urgent application concerning South Africa’s legal obligations to execute arrest warrants against Sudanese President Omar al-Bashir and surrender him to the International Criminal Court (“ICC”).  Al-Bashir, who has two outstanding ICC arrest warrants for his involvement as an indirect (co-)perpetrator of crimes against humanity, war crimes and genocide committed in Darfur, is attending the 25th African Union Summit in Johannesburg.  The application has stood down until tomorrow, Monday 14 June 2015, with Fabricius J making an interim order prohibiting al-Bashir from leaving South Africa.  This has reignited the debate around the alleged illegitimacy and bias of the ICC in having only prosecuted Africans thus far.  However, South Africa’s international and domestic legal obligations are clear, and the government does not need to wait for a court order before it acts.  A preliminary overview of the applicable legal framework follows. (For further reference, John Paul Ongeso, the African Legal Centre’s director of corporate accountability, and a regular ALC commentator, has written on South Africa’s legal obligations for The Conversation here.)

On 4 May 2009, Pre-Trial Chamber I at the ICC issued an arrest warrant for al-Bashir as an indirect (co-)perpetrator for seven counts of war crimes and crimes against humanity committed during the conflict in Darfur between 2003 and 2005.  On 12 July 2010, the same Chamber issued a second warrant for his arrest which added three further counts of genocide.  Since the issuing of the arrest warrants, al-Bashir has largely avoided travelling to countries that are States Parties to the Rome Statute, an international treaty which establishes and governs the ICC and currently has jurisdiction over war crimes, crimes against humanity and genocide.

In terms of Article 86 of the Rome Statute, States Parties have a legal obligation to “cooperate fully with the [ICC] in its investigation and prosecution of crimes within the jurisdiction of the [ICC]”.  This includes South Africa, which ratified the Rome Statute on 27 November 2000.  Importantly, in terms of Article 59, 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”.  And, in terms of Article 89, “States Parties shall . . . comply with requests for arrest and surrender.”  While the relevant requests for arrest and surrender are transmitted through the “diplomatic channel”, on 13 June 2015 the President of the Assembly of States Parties to the Rome Statute called on South Africa “to spare no effort in ensuring the execution of the arrest warrants [for al-Bashir]”.

At the domestic level, South Africa has enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (“ICC Act”) to “provide a framework to ensure the effective implementation of the Rome Statute”.  The preamble to the ICC Act gives insight into why South Africa ratified the Rome Statute, stating that “throughout the history of human-kind millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity [and] war crimes”.  And that South Africa, “with its own history of atrocities, has, since 1994, become an integral and accepted member of the community nations” and is “committed to bringing persons who commit such atrocities to justice”.

Practically, in terms of section 8 of the ICC Act, a “request received from the ICC for the arrest and surrender of a person for whom a warrant of arrest has been issued by the ICC” must be forwarded to a magistrate who must endorse the arrest warrant for execution in any part of South Africa.  Following the arrest, section 10 provides that the accused must be brought before a competent court within 48 hours to determine whether the arrest warrant applies to the person in question and that the accused has been lawfully detained.  Thereafter, a magistrate must order that the person “be surrendered to the [ICC] and he or she be committed to prison pending such surrender.”  Importantly, surrender of a person to the ICC is nothing more than ensuring that an accused appears before the ICC.  It is only the start of the trial process.

On the question of diplomatic immunity, Article 27 of the Rome Statute provides that “the Statute shall apply equally to all persons without any distinction based on official capacity”, particularly official capacity as a Head of State.  And “[i]mmunities or special procedures which may attach to the official capacity of a person, whether under national or international law, shall not bar the [ICC] from exercising its jurisdiction”.  (Own emphasis.)  However, Article 27, which conforms to customary international law, arguably, conflicts with Article 98 which provides that the ICC “may not proceed with a request for surrender . . . which would require the requested state to act inconsistently with its obligations under international law with respect to . . . diplomatic immunity”.  To this extent, the ICC Act provides clarity by remaining silent on any international law obligations that promote diplomatic immunity but rather expressly provides in section 3 that the fact that a person is a Head of State is not a defence to a crime.  Ultimately, any interpretation of the Rome Statute or the ICC Act that diplomatic immunity can be provided to a person after an arrest warrant has issued by the ICC will lead to an absurdity which allows a State Party to circumvent its Rome Statute commitments at will, and it does not conform with South Africa’s purposive approach to interpreting legislation.  (See further the urgent decision by Pre-Trial Chamber II handed down on Saturday 13 June 2015 which finds that the duty on South Africa to arrest al-Bashir is “clear and needs not be further reiterated”.)

Furthermore, South Africa’s Constitutional Court has considered the efficacy and practicality of the ICC Act in a recent judgment concerning alleged commission of torture in Zimbabwe.  A previous post outlines the judgment in more detail; but, for current purposes, Majiedt AJ, in the unanimous judgment, has made South Africa’s position in relation to international criminal justice clear:

“Our country’s international and domestic law commitments must be honoured.  We cannot be seen to be tolerant of impunity . . .  We must take up our rightful place in the community of nations with its concomitant obligations.  We dare not be a safe haven for those who commit crimes against humanity.”

So, South Africa’s international and domestic legal obligations are unambiguous.  If al-Bashir sets foot in South African territory, he must be arrested and surrendered to the ICC –– provided that the requisite request from the ICC has been made, and the magistrate is satisfied that the person brought before her is al-Bashir and that he has been lawfully detained.  So why has the South African government not initiated this process and arrested al‑Bashir?  Once the government has filed its answering affidavit we will know more — if al‑Bashir is still in the country.  But should it be opposing this application in the first place?  It must be remembered that in 2000 the South African government took a positive and voluntary step to ratify the Rome Statute and signal its intention to promote international criminal justice to South Africans and the people of the world.  Two years later it domesticated the Rome Statute in the ICC Act, making the Rome Statute law in South Africa in terms of section 231 of the Constitution (pdf).  And late last year, the South African Constitutional Court unambiguously stated that the Rome Statute and the ICC Act can effectively be implemented in South Africa.

In the interim, critics have used the opportunity to question the ICC’s notion of fairness, its alleged bias towards Africans and the fact that countries such as the United States are not party to the Rome Statute.  It is true that the ICC is currently only prosecuting Africans and that its only successful prosecution was against Thomas Lubanga, a national of the Democratic Republic of Congo who was convicted of war crimes and enlisting child soldiers.  But, while these debates are vitally important to the future of the ICC and must continue, they should not overshadow the allegations that al-Bashir has committed all of the heinous international crimes that fall within the jurisdiction of the ICC, and that South Africa has legal obligations that it must meet.  (See further a recent post on Sudan’s concerning human rights record.)

While inter-state relations and international diplomacy can often involve difficult and important questions, these are not the concern of the courts once international treaties have been ratified and domestic laws have been enacted.  As it currently stands, the law obliges the South African government to act.  And to the extent that it may have failed to arrest al-Bashir and he is no longer present within South Africa, it must account for its actions to the people of South Africa and the international community, especially as to why it may have provided diplomatic immunity to al-Bashir contrary to the law.  Either way, the Southern African Litigation Centre should be applauded for urgently bringing this important issue before court.

The ALC will continue to monitor developments in this case.

Michael Power

About Michael Power

Michael is a Co-founder and the Managing Member of the African Legal Centre (ALC). He has read towards B.A., LL.B. and LL.M (International Law and Development) degrees at the University of the Witwatersrand and he is an admitted attorney of the High Court of South Africa (2014-). Following judicial clerkships with Judge Kathleen Satchwell in the High Court of South Africa (2011) and Justice Bess Nkabinde in the Constitutional Court of South Africa (2014), Michael now practises as an attorney at the Legal Resources Centre, a public interest law firm in Johannesburg.

  • John Paul Ongeso

    Great article! Looking forward to the SA government’s answering affidavit as there’s really no going round the recent CC decision on universal jurisdiction.

  • African Legal Centre

    Court documents can be accessed on the Southern African Litigation Centre website: http://www.southernafricalitigationcentre.org/2015/06/15/

  • Troy Ounce

    Africa Nationalism vs. Montesquieu: 1 – 0