Immunity of heads of states: The Al Bashir case
1 August 2017
Immunity enjoyed by heads of state forms part of customary international law; that is, international obligations that arise from state practice rather than written international agreements between states. It is complex, particularly as international law often operates in grey zones rather than black and white ones. In practice, a head of state may not be arrested or subjected to prosecution in a foreign country by virtue of the office that he or she holds as the head of state. It finds application in the relations between states and the relationship between international tribunals and states. As the International Criminal Court (ICC) observed, immunities “are not provided, in international law, for the benefit of a particular individual, but are grounded on the need to avoid interference with the functioning and sovereignty of one State by another State”.
In this matter, immunity took central stage in both domestic and the international courts. The question was whether Sudanese President Omar Al Bashir enjoyed immunity from arrest and surrender during his visit to South Africa in 2015 by virtue of international law including, locally, domestic law. Each court dealt with this question in a slightly different manner.
Application of immunity and the Rome Statute
The primary purpose of the Rome Statute  was to establish the ICC and regulate the prosecution of serious international crimes. Importantly, the ICC must have jurisdiction to request the arrest and surrender of a person or to hear a case. In terms of the Rome Statute, and relevant to this case, the ICC has jurisdiction (i) over a matter involving the international crimes of genocide, crimes against humanity, war crimes and crimes of aggression;  (ii) over countries that have ratified the Rome Statute;  and (iii) where, pursuant to Article 13(b) of the Rome Statute, the matter has been referred to the Prosecutor by the UN Security Council acting in terms of Chapter VII of the UN Charter.
In applying the above, the first aspect would not pose a problem as President Al Bashir has been charged with the first three international crimes that are mentioned above. Ordinarily, the second aspect would present a bar to the ICC’s jurisdiction as Sudan is not a party to the Rome Statute. However, pursuant to Article 13(b) of the Rome Statute, the Security Council decided in a Resolution in 2005 to refer the situation in Darfur to the Prosecutor of the ICC. The Resolution states that Sudan shall “cooperate fully” with the ICC. The ICC has previously found that the Resolution triggers its jurisdiction.
Although the ICC may have jurisdiction in a matter, a state may nevertheless in certain circumstances raise immunity as a defence to the arrest, surrender or prosecution of its head of state. For instance, countries that have ratified the Rome Statute do not enjoy immunities when the Court exercises its jurisdiction. Importantly, the ICC may only request a state party, like South Africa, to arrest and surrender a person from a country that has not ratified the Rome Statute if that country agrees to waive immunity. Sudan has not waived any immunities, but as we shall see below, the ICC and the South African Supreme Court of Appeal found that immunity did not exist in this case.
While the Supreme Court of Appeal dealt with immunity in the light of the Implementation Act,  which incorporated the Rome Statute into South Africa’s domestic law, the ICC dealt with the question of immunity flowing from the Security Council’s Resolution. The effect of this Resolution on country status and immunity has sparked much debate between scholars  and is the point of difference between the ICC’s majority decision and the minority opinion, discussed in greater detail below. This is the legal context in which the judgments must be read.
Supreme Court of Appeal
The Supreme Court of Appeal noted that the customary international law rule of immunity stood, as also confirmed in the Diplomatic Immunities and Privileges Act,  and that sitting heads of state enjoy immunity when visiting a foreign country – even if they have been charged for allegedly having committed international crimes, as is the case with President Al Bashir. However, the Court found that the Implementation Act’s provisions overrode any immunity in this particular case.
It noted the purpose of the Implementation Act: to ensure the effective implementation of the Rome Statute. Essentially, the Implementation Act must be read in the light of South Africa’s commitment to carry out its obligations under the Rome Statute and bring persons who commit international crimes to justice, whether it is in a South African court or in the ICC. Given the purpose of the Implementation Act, the Court found that the provision in the Implementation Act which excludes a claim of immunity when brought before a South African court should similarly exclude immunity as a procedural bar to bring that person to trial before the ICC.  The Court acknowledged that this exclusion of immunity of heads of state will not apply generally but will only apply to those charged with international crimes before the ICC and in relation to South Africa’s obligations to the ICC. As a result, South Africa was obligated to arrest and surrender President Al Bashir during his June 2015 visit to South Africa.
International Criminal Court
The ICC confirmed that sitting heads of states would ordinarily enjoy immunity under customary international law. It also acknowledged that, in principle and as stated above, the ICC may not request a state party to arrest and surrender a country’s head of state that is not party to the Rome Statute without obtaining a waiver of immunity first. But it distinguished the Al Bashir / South Africa case on grounds of the “special regime” found in the Charter of the United Nations, to which both Sudan and South Africa are signatories and which is referred to in Article 13(b) of the Rome Statute.
The ICC found that not only did the UN Security Council Resolution have the effect of triggering the ICC’s jurisdiction, but it also resulted in Sudan having rights and duties analogous to a state party to the Rome Statute. This has two consequences to immunity as it relates to Sudan. First, Sudan cannot claim President Al Bashir’s immunity as a defence against arresting and surrendering him to the ICC. Second, President Al Bashir’s immunity as the head of state no longer applies in countries, like South Africa, that are state parties to the Rome Statute – these countries are obliged to arrest and surrender President Al Bashir to the ICC. The ICC noted that Sudan did not need to waive its immunities because, as a “state party”, it no longer enjoyed these immunities. While this may be seen as an expansion of the applicability of an international agreement which a country has not voluntarily signed, the ICC found justification in doing so by referring to the Security Council’s ability to impose obligations on states.
In the minority opinion, Judge Marc Perrin de Brichambaut also acknowledged that the Resolution effectively triggers the ICC’s jurisdiction. However, he differed from the majority on the basis upon which President Al Bashir no longer enjoys immunity. According to the minority opinion, the ICC cannot exclusively rely on the Resolution to justify a conclusion that Sudan is analogous to a state party to the Rome Statute. Nor can it definitively state that the Resolution removes his immunity as Sudan’s head of state.
Rather, the minority opinion based its argument on the Genocide Convention. As both Sudan and South Africa are contracting parties to the Convention, the minority judgment found that the usual immunities enjoyed by heads of state are incompatible with the obligations these countries have undertaken in relation to genocide. President Al Bashir is alleged to have committed genocide and, as a result, he does not enjoy immunity from arrest and surrender. The majority did not agree. It stated that the Convention, unlike the Rome Statute, does not explicitly provide for the waiver of immunities by contracting parties by virtue of ratifying the Convention; and it cannot reasonably be interpreted to provide for an explicit exclusion of immunities.
The crucial question in this case was therefore whether the UN Security Council Resolution, in founding the jurisdiction of the ICC, at the same time also nullified any potential claims of immunity by the Sudanese head of state. The majority decision found that it did while the minority was not convinced. The effect of the Resolution is therefore not an uncontested principle.
It is clear that immunity is a complex issue. It gnaws at the heart of state sovereignty and relations between states. It is based on international principles that are not codified, and even when it is provided in writing, various instruments can be used, as was seen in this case, to find it inapplicable. Immunity also raises the debate about substance over form and whether procedural bars should stand in the way of justice, particularly given the nature of the crimes committed. It seems in this case, the courts opted for justice.
By Michelle Toxopeüs, Legal Researcher, HSF, 1 August 2017
 ICC majority decision at para 78.
 Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others  ZASCA 17; 2016 (3) SA 317 (SCA) accessed at http://www.saflii.org/za/cases/ZASCA/2016/17.html. The majority judgment of the ICC: Pre-Trial Chamber II, The Prosecutor v. Omar Hassan Ahmad Al-Bashir, “Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir”, 6 July 2017, ICC-02/05-01/09 accessed at https://www.icc-cpi.int/CourtRecords/CR2017_04402.PDF. The minority opinion of the ICC accessed at https://www.icc-cpi.int/RelatedRecords/CR2017_04403.PDF. Also see previous HSF briefs on the SCA judgment by Matthew Kruger accessed at http://hsf.org.za/resource-centre/hsf-briefs/after-al-bashir-part-i; and http://hsf.org.za/resource-centre/hsf-briefs/after-al-bashir-part-ii.
 Rome Statute of the International Criminal Court, 1998.
 Article 5 of the Rome Statute.
 Article 12(1) of the Rome Statute.
 The other two circumstances that triggers the ICC’s jurisdiction in terms of Article 13 include (i) if it is referred to the Prosecutor of the Court by another state party; or (ii) the Prosecutor has initiated an investigation into the alleged crime.
 UN Security Council Resolution 1593 (2005) accessed here.
 See Pre-Trial Chamber I, The Prosecutor v. Omar Hassan Ahmad Al Bashir, “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 4 March 2009, ICC-02/05-01/09, para 40 accessed here.
 Article 27(2) of the Rome Statute.
 Article 98(1) of the Rome Statute.
 Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
 See Gaeta P “Does President Al Bashir Enjoy Immunity from Arrest?” (2009) Journal of International Criminal Justice 315-332; Akande D “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities” (2009) Journal of International Criminal Justice 333-352; and Oette L “Crimes in Darfur Before the ICC: Five Years on – Peace and Justice, or Neither? (2010) Journal of International Criminal Justice 345-364.
 Section 4(1) of the Diplomatic Immunities and Privileges Act 35 of 2008.
 The Court based its interpretation on section 4(2) of the Implementation Act.
 Article 25 of the UN Charter. Also see International Court of Justice “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)” Advisory Opinion of 21 June 1971  ICJ Reports 16 at para 116.