Bashir Leaves South Africa

by Jens David Ohlin

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.

http://opiniojuris.org/2015/06/15/bashir-leaves-south-africa/

12 Responses

  1. If South Africa is free to defy the ICC why should not Israel be likewise free?

  2. Thanks for the post . I don’t understand yet , in length the whole affair , yet should be noticed :

    1) Maybe , since , African leaders, have complained recently about the discriminatory attitude of the ICC towards them, That has to do with it , Such sentiment , in light of the circumstances( conference itself of African leaders ) influenced somehow , the south african government .

    2) A motion , for contempt of court , has been filed , against the government ( by human rights organization , see links )

    3) To my best understanding, the South African constitution, has been gravely violated, for : the supremacy of the constitution, and the international law, is very conclusive and clear there, here some relevant provisions (constitution):

    ” chapter 1. founding provisions

    1. the republic of south africa is one, sovereign, democratic state founded on the following values-
    c. supremacy of the constitution and the rule of law. ”

    And :

    ” 233. application of international law
    when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law .”

    Let alone when :

    ” 5. the security services must act, and must teach and require their members to act, in accordance with the constitution and the law, including customary international law and international agreements binding on the republic.”

    Link :

    http://www.nytimes.com/2015/06/16/world/africa/omar-hassan-al-bashir-sudan-south-africa.html?_r=0

    http://www.news24.com/SouthAfrica/News/SALC-considering-contempt-proceedings-against-govt-20150615

  3. “So what excuse can the South African government muster?”

    The South African government (and the AU) have a very simple argument (or excuse, if you prefer). It is not the ICC, but states that create international law. That includes the international law of immunities, including Head of State immunities.

    If states refuse to enforce the arrest warrant against Bashir, and provided they do so out of a sense of legal obligation (the famous opinio juris of custom), the fact of the matter is that Bashir has immunity under customary international law.

    The ICC, NGOs and everybody else can keep repeating that this is unjust, and it is hard not to be sympathetic. Most reasonable people agree Bashir has blood on his hands. But this alone is not much of a legal argument.

    The ICC’s judges have made two attempts to explain away Bashir’s immunities, both of which have been criticised (see: http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%E2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/; http://opiniojuris.org/2014/04/23/guest-post-icc-changes-mind-immunity-arrest-president-al-bashir-wrong/; http://www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities-%E2%80%92-but-gets-the-law-wrong-again/; http://chinesejil.oxfordjournals.org/content/12/3/467.abstract; http://dovjacobs.com/2015/06/14/does-south-africa-have-an-obligation-to-arrest-and-surrender-bashir-to-the-icc-no/). That said, many scholars agree with the ICC (at least its more recent decision, 2014 against DRC; almost everyone, including Dapo Akande, agrees the 2011 Malawi/Chad decisions were wrong). The South African High Court agreed with the ICC today as well, which is an important endorsement of the 2014 decision.

    Reasonable minds can disagree about the merits of both positions, but one thing I do not understand is why international lawyers in the second camp (ie in agreement with ICC’s interpretation of Bashir’s immunities = lack thereof) keep asking what legal EXCUSE (this is the word that is frequently used, which makes it sound more like legal advocacy) the first camp can possibly provide.

    The answer is simple: states still have an important role to play in creating international law. If African states keep ignoring the ICC’s position, there is a strong argument to be made that the ICC is wrong and the AU/African states’ position on immunities is right, i.e. Bashir retains immunity under customary international law notwithstanding the ICC arrest warrant, resolution 1593 etc.

    Now, just to be clear: I am not saying the AU is right as a matter of lex lata. Nor am I saying that all African states are not arresting Bashir out of a sense of legal obligation re his immunities (I can’t know this for sure, although the DRC – to take one example – argued precisely this before the ICC in 2014).

    All I am saying is this: there is a fundamental rift between the African Union and the West with respect to the ICC, especially when it comes to prosecutions of Heads of State. One may disagree with the AU position, but let us at least acknowledge that it is coherent: States make international law, and that includes African states. If African States keep ignoring the ICC arrest warrant, there is a plausible argument to be made that Bashir retains immunity under customary international law. I don’t expect the ICC to ever acknowledge this, but if the ICJ gets a crack at this question the outcome is hardly foreordained (see Germany v. Italy).

  4. There will not be a constitutional crisis in South Africa, and no action by the Assembly of State parties. This will blow over.

    The SA government (the ANC has had uninterrupted rule since the end of Apartheid, I believe) is I think too strong for the courts to take on over something the ANC has decided is important. Or if there is a constitutional crisis, it will be of the opposite kind – where the government is revealed as being highly unconstrained. The courts likely do not want further embarrassment, and will move on.

    Same with the Assembly of State Parties. What are they going to do, sanction South Africa? That will only further alienate African countries. Anyway, the Bashir episode is I think less severe than Kenyatta – witness intimidation may be the most corrosive thing for justice. If that did not inspire the State Parties to action, this won’t either.

    Too many have too much invested, ideologically, in the Court to dwell long on its failures. Rather, there will be a desire to forget this little incident and move on to doing justice.

  5. Patryk l.labuda ,

    With all due respect, I don’t see, how balancing apparently , between customary international law, and international law( baseless by it self , but I won’t deal with it here ) can help here.

    We deal here with a warrant !! A warrant issued by the ” Roman court “. Unless prima facie, the warrant is illegal, the South African, executive branch and court , must comply with it .

    Must comply, it means, as if it is: a warrant of a South African judge.

    Now, Prima facie, that warrant has been signed by a pretrial judge, authorized by the Rome convention to issue an arrest warrant.

    And: substantially, The Rome convention prescribes deliberately and insist specifically on those heads of stated, to be brought to trial ( article 27 to the Rome convention : ” Irrelevance of official capacity ” ) .

    So think again with all due respect. Thanks

  6. Patryk l.labuda , just to underline it :

    You should conclude from my comment above , that :

    We deal here , not with interpretation of the law , but rather , execution of a warrent . Thanks

  7. Good day,

    Professor Gaeta’s article referred to above (http://opiniojuris.org/2014/04/23/guest-post-icc-changes-mind-immunity-arrest-president-al-bashir-wrong/) is indeed a helpful guide in the matter. She explains that “Article 98(1) [of the Rome Statute] says that the Court may not proceed with requests of cooperation which would put the requested State in the position to act inconsistently with its obligations on immunities vis-à-vis third States ‘unless the Court can first obtain the cooperation of that third State for the waiver of immunity’ (emphasis added). The question here is not the existence of a legal obligation upon the third State to cooperate, but the actual cooperation that the Court must obtain from the third State to waive the immunity”.

    In another article (abstract here http://jicj.oxfordjournals.org/content/7/2/315.abstract) Professor Gaeta points out that “it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court…while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires”.

    I respectfully agree with that analysis and will add that international relations would not survive if the states were complying with such obligation to cooperate at the expense of the equally important and concurrent obligation under international law to respect state immunity. It is worthy to mention that rules of state immunity are procedural in character i.e. they are confined to determine whether courts of one state can exercise jurisdiction in respect of another state and not to determine the questions of substance (Jurisdictional Immunities case (2012)). As Lord Bingham explained this further in Jones v. Ministry of Interior Al-Mamlaka Al –Arabiya AS Saudiya (2006) “it is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state”.

    Based on South African State of Immunity Act, the courts are under a duty to “give effect to the immunity conferred by [the Act] even though the foreign state does not appear in the proceedings in question” (see Section 2(2) of the Act as published at http://www.dfa.gov.za/chiefstatelawadvicer/documents/acts/foreignstatesimmunitiesact.pdf). These considerations actually raise a question as to whether South African court had jurisdiction to issue an interim order in respect of the head of state, whose immunity ratione personae has not been waived.

    The current situation is obviously not satisfactory and it does not serve the ends of justice. It is imperative that states whose officials are suspected of being perpetrators of international crimes take voluntary steps to bring them justice either by national prosecution, by submission to ICC or waiver of immunity in respect of the particular suspect. It is not however for foreign sovereigns to exercise their authority over such officials as this, in the absence of a waiver, would amount to indirect exercise of sovereign authority over the state itself. This is against the fundamental principles of international law, par in parem non habet imperium.

    Regards,

    Aleksandra

  8. Aleksandra Smith ,

    Thanks for your comment . With all due respect , Such reading of article 98 (1 ) to the Rome convention , is totally baseless , here I quote :

    ” The Court may not proceed with a request for surrender or assistance which would require the requested State 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, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

    Now , read carefully :

    1) It has been proven above , that it is not : ” 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….” Since , south Africa , is a state party to the convention ( rome ) and : pretrial judge there , is not dumb , to issue a warrant , while knowing , that it is inconsistent with ……that is what the supreme court in south African has ruled finally .

    2) The court ( Rome ) is obliged : ” first …. ” to obtain from the third state ( Sudan ) first , and latter to act in accordance , it is not a total stipulation , and indeed , the Roman court , has requested Sudan , over and over , to cooperate , and : non has been done , it means : Green light , go ahead with enforced arrest on the territory of third parties states , like south Africa .

    3) The Roman legislator , is not dumb ( neither the south African supreme court ) . On one hand , prescribing a constitutional provision : not to let them go unpunished and being shielded ( preamble ) and on the other hand , needing third party consent ( let alone of the state of perpetrator ) for basic procedure of arrest .

    4) You know what’s funny ?? Bashir himself gave up his immunity , all , at first place , by reaching south Africa ……. But :

    Falling short of time and resources……maybe latter . Thanks

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