South Africa arms itself for battle with the ICC

8 October 2015

South Africa appears to be girding itself for a heroic showdown with the International Criminal Court (ICC) over its failure to arrest Sudanese President Omar al-Bashir when he visited Johannesburg for the African Union (AU) summit in June. 

This may produce a lot of heat – but with a bit of luck it might also illuminate some darker corners of the ICC’s operations.

Other ICC member states have generally tried to excuse themselves when they breached their ICC obligations by not arresting al-Bashir, who has been a fugitive from ICC justice for the last six years for alleged war crimes, crimes against humanity and genocide against the people of Darfur. Or at least they have been contrite.

In 2013, Nigeria notably, though not necessarily plausibly, told the ICC it would have arrested al-Bashir, when he came for an AIDS summit, but for his ‘quick escape.’ The ICC bought this excuse anyway.

But the South African government, not surprisingly, is clearly adopting a more combative posture and evidently seeks instead to justify its action. This was very evident in its response this week to the court’s request for an explanation, by 5 October, on why it ignored very explicit requests from the court to arrest al-Bashir.

The statement said that it needed more time to respond to the ICC ‘in view of the complex and conflicting legal principles involved, both in international and in South African domestic law and the fact that the South African courts are still seized with the matter.’

It noted that government was seeking leave to appeal against the North Gauteng High Court’s judgment that the government’s failure to arrest Al-Bashir was unconstitutional.

The ‘conflicting legal principles’ it referred to were those between South Africa’s ICC obligation to arrest al-Bashir and ‘the immunities that international law accords to serving heads of state and government, as acknowledged by Article 98 of the Rome Statute…’

The government said that when it had raised these concerns with the ICC in The Hague, just before al-Bashir arrived, it was not given a fair chance to present its case. South Africa said it believed its consultation with the ICC – under Article 97 of the Rome Statute – was a diplomatic and political process.

Instead it ‘morphed into a judicial process based on an urgent application by the Prosecutor of the Court for an order on the South African obligations to the Court. South Africa was unfortunately not afforded the opportunity to present legal arguments on this application and hence it is of the view that the principles of justice were not adhered to.’

The statement added, ‘In view of the above, South Africa is of the view that a serious infringement of South Africa’s rights as a state party [to the Rome Statute] has taken place and that the Court has acted against the letter and spirit of the Rome Statute.’

Wham. As Von Clausewitz said, the best form of defence is attack. The government then said it would ask the Assembly of States Parties (ASP) to the Rome Statute – the political body governing the ICC – to discuss and clarify the Article 97 consultation process and the immunities question under Article 98.

Pretoria has thus set the stage for a potentially hostile, but certainly also interesting encounter with the ICC. And it might very well throw some necessary and useful light on some obscurities in Articles 97 and 98.

Article 97 provides for consultation between a member state and the ICC where the member state receives a request from the ICC, which it finds problematic. That could include the problem of executing a request that ‘would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.’

Article 98, at first glance, seems favourable to South Africa. It says the court may not proceed with a request for the surrender of a suspect or other assistance, that would require the requested state (in this case South Africa) to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state (in this case Sudan), unless the court first obtains the cooperation of that third state for the waiver of the immunity.

But when South African government officials consulted the ICC on 12 and 13 June – the latter being the day al-Bashir arrived in South Africa – the ICC ruled that al-Bashir’s immunity had been ‘implicitly waived’ by United Nations Security Council resolution 1593 of 2005, which had referred the Darfur situation to the ICC in the first place. The consultation process on this immunity question between South African officials and the ICC was also rather abrupt. It began on Friday 12 June, continued on Saturday 13 June and was supposed to resume on Monday 15th. But when the ICC realised that al-Bashir was already in South Africa, it clearly felt the need to accelerate the process.

So the prosecutor sought an order from the court’s Pre-Trial Chamber 2, which presiding Judge Cuno Tarfusser delivered later that day. He essentially decreed that no further consultation was needed because the court had already decided the matter in a precedent the year before, in a case involving al-Bashir’s visit to the Democratic Republic of the Congo, on the basis of the ‘implicit waiver.

Ottilia Maunganidze, a senior researcher at the Institute for Security Studies (ISS) believes that ‘the South African government’s concerns around Article 97 cannot and should not be dismissed. This was the first time the ICC went this route (an Article 97 consultation) and was thus a test for all involved. The process was hurried (the situation called for this – however unfortunate) and one can argue that it wasn’t handled in the manner it should have been.’

Arguably, South Africa itself was mainly responsible for the haste. On 28 May, the ICC had written to say it believed al-Bashir might be coming to the AU summit, reminding South Africa of the obligation to arrest him and asking it to consult with the court if it had any problems with the request.

It was more than two weeks later – on the eve of al-Bashir’s arrival – that the South African ambassador to the Netherlands, Bruce Koloane, and legal advisers arrived at The Hague to meet the ICC. If a fully fledged consultation process had started then, it would have become academic, as al-Bashir would have come and gone before it ended.

Maunganidze also believes that South Africa ‘is right to seek further clarity on the immunities question addressed in Article 98 (1) of the Rome Statute.’ Allan Ngari, also a researcher at the ISS, notes that the ICC did not ‘properly interrogate and interpret’ Article 98 in its rulings against Malawi and Chad in 2011 for failing to arrest al-Bashir. So it’s good that South Africa is now tackling the issue head on.

The need for clarity certainly seems obvious to the layperson. On the one hand, the Pre-Trial Chamber’s ruling that al-Bashir’s immunity had been ‘implicitly waived’ seems to be a rather vague justification for such a critical decision. On the other hand, since the Rome State itself very explicitly, and historically, waived immunity against prosecution for even sitting heads of state, it seems logical that Article 98 ought not lightly to reverse that waiver.

The other big question this case raises is whether South Africa is planning to conduct its struggle with the ICC on the right terrain. Both Maunganidze and Ngari believe that Pretoria is wrong to raise its issues at the ASP rather than in the ICC’s Pre-trial Chamber.

‘South Africa regards the ICC as politicised and engages with it as if it were a political body, rather than an independent judicial entity,’ Maunganidze says, which is why it is choosing to have a political discussion in the ASP rather than a legal one with the court itself.

Ngari believes that ‘a responsible government that says that it “remains committed to international criminal justice and to cooperate with the Court in the pursuit thereof as was envisaged in the Rome Statute” [as the government avowed in this week’s statement] should then take the responsibility to seek this clarification by the judicial arm that has the mandate to clarify the matter.’

He suggests though, that Pretoria is choosing the political ASP rather than the judicial Pre-Trial Chamber as its battleground precisely because it fears that the Pre-Trial Chamber could rule very explicitly that ‘the obligations of all states regardless of status as an ICC State Party, to prevent and punish the crime of genocide without exception … trump the lower-order obligation to respect immunity of heads of state and government.’

By domestic analogy, one could argue that the government is trying to settle international law in Parliament rather than in the courts. And that’s probably what it would like to do in South Africa, too, as it always wins the arguments in Parliament.

Peter Fabricius is an ISS Consultant.

This article first appeared in ISS Weekly, the online newsletter of the Institute for Security Studies.