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South Africa’s Failure to Arrest President Bashir

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On Monday 15 June 2015, Sudanese President Omar Al-Bashir, charged by the International Criminal Court (ICC)with crimes against humanity, war crimes and genocide, was allowed to leave South Africa despite an interim order made by the High Court in Pretoria barring his departure. The incident marks yet another missed opportunity for international criminal justice and a threat to the credibility and deterrent effect of the ICC.

Africa faced conflicting obligations in this regard, as an ICC member state on the one hand, and as a member of the African Union (AU) on the other. As a party to the Rome Statute, South Africa has a duty to cooperate with the Court under Article 86; this includes enforcing arrest warrants issued by the Court, if the individual concerned is within South Africa’s jurisdiction. However, although the ICC has issued two warrants for President Bashir’s arrest (in 2009 and 2010), the AU has repeatedly opposed the ICC’s investigation and prosecution of the Sudanese leader.

The AU has called on its member states to refuse to cooperate with the Court, and has even called for African states to withdraw from the Rome Statute altogether. As the host of the 25th AU Summit, attended by President Bashir, South Africa found itself in a difficult position and had to choose between its competing international and regional obligations. Its ultimate decision not to arrest the Sudanese President is surprising in light of South Africa’s past commitment to the rule of law and its traditional support for the ICC.

South Africa’s failure to arrest the Sudanese leader is a clear political blow to the credibility of the ICC as an adjudicator of international crimes. The incident highlights the Court’s dependence on state cooperation for the enforcement of its orders, and therefore its ultimate inability to take any meaningful independent steps towards international justice. This not only affects the access to justice of past and present victims, but it also diminishes the deterrent effect of the ICC going forward. International laws which cannot be enforced risk becoming meaningless.

While many would argue that South Africa’s actions are also in clear breach of its obligation to cooperate with the Court under the Rome Statute, the reality is much more nuanced. Serving heads of state, among other state officials, enjoy immunity from arrest and prosecution under public international law. With this issue in mind, the drafters of the Rome Statute introduced Article 98(1), which states that the ICC cannot request the cooperation of a state, for example requesting the arrest of an individual, if this would require the state in question to act inconsistently with its international obligations, with respect to jurisdictional immunities, towards a state which is not a party to the Rome Statute. As Sudan is not a party to the Rome Statute, one may argue that Article 98(1) removes South Africa’s obligation to arrest the Sudanese President, because an arrest would mean violating its international obligations towards a third-party state.

However, this line of reasoning is no longer well accepted. The prevailing view is that the United Nations Security Council’s (UNSC) referral of the Darfur situation to the ICC makes Article 98(1) inapplicable to South Africa’s obligations. The UNSC referred the situation in Darfur to the ICC via Resolution 1593 (2005), in accordance with Article 13(b) of the Rome Statute. Furthermore, UNSC resolutions are binding on all UN member states, including Sudan, under Article 25 of the UN Charter. It can therefore be argued that the UNSC referral had the effect of lifting the jurisdictional immunities enjoyed by the Sudanese President, as this is a necessary pre-condition to the referral being effective in allowing the ICC to investigate and prosecute the crimes committed in the Darfur situation.

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In April 2014, the ICC Pre-Trial Chamber confirmed this position by stating that, through its referral to the ICC, “the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State. Consequently, there also exists no impediment […] as regards the execution of the 2009 and 2010 Requests” (para 29).

In addition, the International Court of Justice confirmed, in the 2002 Arrest Warrant Case judgment (para 61), that jurisdictional immunities do not apply in front of international criminal courts when these have jurisdiction in the case in question. This is clearly applicable to President Bashir’s situation, as the UNSC referral gave the ICC jurisdiction over his case.

Therefore, South Africa had a clear obligation to arrest the Sudanese President while he was in its territorial jurisdiction during the AU Summit. Its failure to do so is not only contrary to its legal obligations under the Rome Statute and the UN Charter; South Africa also overlooked its obligations, as a member of the international community, to uphold the rule of law and finally bring President Bashir to justice. There have even been rumors that Sudanese troops held South African peacekeepers hostage to ensure Omar Al-Bashir’s safe departure from South Africa; however, this has been denied by the UN. In addition, South Africa failed to respect the rule of law at the domestic level by ignoring the interim order barring President Bashir’s departure, made by the High Court in Pretoria. Indeed, the High Court in Pretoria stated that a decision not to arrest President Bashir wasunconstitutional.

As highlighted above, this incident endangers the future of the ICC as a protector of international criminal justice and a deterrent for future atrocities. There is, however, a silver lining to South Africa’s highly publicized decision not to arrest the Sudanese President. The general outrage expressed by numerous media outlets (such as The Guardian, Le Monde, The New York Times, and Die Zeit) is a useful barometer of the increased popular legitimacy now enjoyed by the ICC. International criminal law, and the ICC in particular, is a relatively new and often controversial institution.

The fact that South Africa’s disregard for its obligations under the Rome Statute has elicited widespread indignation from the mainstream media means that the Court has now become a credible and well accepted part of the criminal justice landscape. We can only hope that this incident will, in the future, dissuade states from breaching their obligations under international criminal law for fear of damaging their position and reputation in the international arena.

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