South Africa must arrest presidents charged with crimes against humanity

The ICC was asked to answer two questions: (1) was South Africa’s failure to comply with the request for arrest and surrender of President al-Bashir contrary to the provisions of the Rome Statute of the International Criminal Court (Rome Statute); and (2) if so, does the matter warrant referral to the Assembly of States Parties (Assembly) or the United Nations Security Council (UNSC)?

Previously in this saga, the South African High Court ruled that South Africa’s failure to arrest President al-Bashir was inconsistent with the Constitution, the Rome Statute and South Africa’s Implementation of the Rome Statute of the Criminal Court Act, No 27 of 2002. The Supreme Court of Appeal (SCA) subsequently confirmed this ruling.

Before the ICC, South Africa primarily argued that President al-Bashir enjoys immunity from criminal proceedings under customary international law and, given that such immunity had not been waived by Sudan, the ICC could not request South Africa to arrest and surrender the President. Consequently, South Africa was not obliged to do so.

The ICC found that customary international law prevents a state from exercising criminal jurisdiction against a different head of state. However, article 27(2) of the Rome Statute provides that diplomatic immunity does not bar the ICC from exercising its jurisdiction over such a person. This in turn means that these heads of state are not immune to arrest. The irrelevance of diplomatic immunity in relation to proceedings before the ICC is thus incorporated in the Rome Statute as a basic principle to which states parties subscribe by voluntarily ratifying the statute. There is, as such, no immunity to be waived.

As a result, a states party cannot refuse to comply with a request by the ICC for the arrest and surrender of the head of state of another states party as any possible immunity vis-à-vis the ICC has been rendered inapplicable by the ratification of the Rome Statute.

In this particular case, although Sudan is not a party to the Rome Statute, the referral of the matter to the ICC by the UNSC brings the matter within the ICC’s jurisdiction. By triggering the ICC’s jurisdiction, the UNSC has imposed an obligation on Sudan to cooperate fully with the Court in terms of the Rome Statute. By imposing this obligation on Sudan, the effect is that in respect of the situation in Darfur, Sudan has rights and duties analogous to those of a states party.

As a consequence, article 27(2) of the Rome Statute applies equally to Sudan which renders any diplomatic immunity belonging to Sudan inapplicable. As such, Sudan cannot claim immunity for President al-Bashir as a sitting head of state, nor may President al-Bashir claim it for himself. There is no immunity that needs to be waived before a states party can arrest him.

Therefore, states parties, including South Africa, have an obligation in international law to arrest and surrender President al-Bashir to the ICC.

Turning to the second question of what to do in relation to South Africa’s non-compliance, South Africa argued that a referral to the Assembly or the UNSC is not warranted as it would cast South Africa in a bad light and would not encourage future cooperation.

The ICC attributed great weight to South Africa’s engagement with it prior to the hearing in an attempt to seek a final legal determination on the obligation to arrest and surrender. This proactive conduct set it apart from previous instances of non-compliance in this matter by other states.

Another important consideration in the exercise of this discretion is whether an external referral would be an effective way of ensuring cooperation in the future. At this point, the ICC relied on the fact that South Africa appears to have accepted that it has a legal obligation to cooperate with the Court under its domestic legal framework by virtue of it withdrawing its appeal against the previous ruling of the SCA.

The Court found that any doubt in relation to the issue of South Africa’s obligation to arrest President al-Bashir has now been laid to rest by both the ICC and the South African courts. A referral to the Assembly or the UNSC would achieve no further cooperation. Therefore, the Court declined to refer the matter to the Assembly or the UNSC.

The South African courts and the ICC itself have now clarified that South Africa was under an obligation to arrest President al-Bashir in June 2015, and – should he enter South African territory again – South Africa shall remain so obliged. It remains to be seen whether South Africa will appeal the ICC’s decision.