More thoughts on al-Bashir, Sudan, and South Africa

by Jens David Ohlin

I wanted to follow up on my previous post about the inter-branch dispute in the South African government over executing an international arrest warrant against President al-Bashir of Sudan. A South African court issued an order preventing al-Bashir from leaving South Africa, but notwithstanding this decision, the South Africa government appears to have let him escape anyway. It appears to be a case of executive branch defiance of a binding judicial order.

Several readers have suggested that South Africa is not under a legal obligation to arrest al-Bashir because doing so would violate their obligations to Sudan to respect either head of state or diplomatic immunity under either customary international law or the Vienna Convention. Furthermore, article 98 of the Rome Statute specifically says that a party to the Statute need not arrest someone if doing so would conflict with its other international obligations. Some have suggested that either South Africa or the ICC can request a waiver from Sudan, but if no waiver is forthcoming, then South Africa need not execute the arrest warrant pursuant to article 98, which reads:

Article 98: Cooperation with respect to waiver of immunity and consent to surrender
1. 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.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This is an old debate, with important and excellent contributions from scholars such as Paola Gaeta and Dapo Akande. I want to make a quick point here and just broadly sketch out my view on this matter.

Regardless of the correct view on this matter in general, there are specific aspects to this particular dispute with Sudan that are relevant to the legal analysis. It is not just a question of analyzing the Rome Statute, customary international law, and the Vienna Convention. There are other sources of law to consider.

The charges against al-Bashir include genocide. Although the legal obligations regarding the prevention and punishment of genocide originally emerged from the Genocide Convention, they have now risen to customary international law and represent erga omnes obligations. Furthermore, one of those obligations is the duty to prosecute or extradite any individual accused of genocide. This is a jus cogens obligation that prevails over any supposed legal obligation under the law of diplomatic relations. In this case, then, Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.

Even if one does not accept this argument, there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard. The UN Security Council, in referring the case to the ICC, invoked its Chapter VII powers and directed Sudan to cooperate with the court. As such, Sudan is under an international legal obligation to cooperate with the court. Since this legal obligation is binding and stems from the Security Council’s Chapter VII authority, it prevails over any conflicting legal obligation. This principle is embodied in Article 103 of the Charter but is also customary law and part of the necessary architecture of our modern Charter-based collective security regime.

(Just to be clear, the details of this analysis need to be flushed out; for purposes of blogging brevity, this was the outline of the argument.)

http://opiniojuris.org/2015/06/17/more-thoughts-on-al-bashir-sudan-and-south-africa/

6 Responses

  1. I like that second point. If I could make a reader request, I’d like to see more analysis of that one in particular!

  2. Thanks for the post . Just to quote in this regard , from the warrant arrest , issued by the pretrial chamber judge , to the South african authorities , here :

    ” In addition, the Chamber stated that since the Security Council, acting under Chapter VII of the UN Charter, had
    lifted the immunities of Omar Al Bashir by virtue of Resolution 1593(2005)….. ”

    So , one could understand also , why customary international law ( among other reasons )couldn’t play or prevail here .

    He who wants , can access the warrant here :

    http://www.icc-cpi.int/iccdocs/doc/doc1995566.pdf

    Thanks

  3. Thanks for continuing this legal discussion. It certainly deserves more ‘airtime’.

    Both your arguments remind me, mutatis mutandis, of the 2011 ICC decision against Malawi and Chad. In essence, they are an iteration of the idea that because 1) of the nature of the crime (jus cogens), 2) the nature of the Security Council referral (art. 103), all other conflicting obligations are overridden.

    It is a tempting line of argument, but I think there are serious problems with both claims if taken to their logical conclusion.

    With respect to your first point, you say: “Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.” There is a complete disconnect between the first and second sentence. How exactly do we get from Sudan’s obligation to prosecute/extradite (which, I agree, exists under the Gen. Conv.) to South Africa being able to disregard Head of State immunity under customary international law?

    You are painting with a very broad brush here. Are you suggesting that if a national tribunal accuses Vladimir Putin of genocide, any state in the world can automatically disregard his immunities? In Belgium v. DRC, the ICJ expressly rejected this argument and re-affirmed personal immunity for the famous troika (Heads of State, prime ministers and ministers of foreign affairs) even if they are charged with international crimes. The situation is more complex when ‘certain international criminal tribunals’ get involved, but I raise the point about domestic tribunals to illustrate that ‘jus cogens’ is hardly the killer argument you make it out to be. In other words, immunities do not simply disappear because a jus cogens norm is in play.

    On a side note, Art. VI of the Genocide Convention reads: “Persons charged with genocide… shall be tried… by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”. Not much help in the context of Bashir, Sudan and the ICC, I’m sure you’ll agree?

    With respect to your second point, you say “there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard.” Again, it is the ‘by extension’ part which I find unconvincing.

    Yes, Sudan is under an international legal obligation to cooperate, and it has consistently violated that obligation since 2008 (apparently there was some cooperation right after the referral, but it ended after the ICC issued indictments). Sudan can be held responsible for this violation (State responsibility).

    But how does one State violating an international obligation relieve another State of its own international obligations? Two wrongs don’t make a right. I’m not sure this is what you meant by ‘by extension’, but – if so – it strikes me as implausible.

    Moreover, SC Res 1593 is very clear about who does and doesn’t have an obligation to cooperate:

    (para. 2) “Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;”

    South Africa is a State Party, but as is clear from para. 2 it’s obligation to cooperate with the ICC stems not from Res. 1593 but from the Rome Statute itself. The scope of that obligation (art. 27 vs. art 98), and in particular whether the SC has ‘implicitly waived’ Bashir’s immunity, is precisely what the debate between Paola Gaeta and Dapo Akande is about.

    There is a lot more to say about Res 1593 and – if Akande is right – its implications for the Rome Statute. This is where complex systemic considerations come into play, e.g. can the Security Council, by virtue of art. 103 UNC, do something that the Rome Statute expressly prohibits, for instance mandate the ICC to investigate crimes committed before 2002?

    The comments section is not the place to start a debate about this complex question. Some scholars agree with this view, others disagree – my point is merely that if one accepts your second point, namely that art. 103 of the UNC “prevails over any other conflicting legal obligation”, one should also be prepared to take this argument to its logical conclusion. It means the Security Council can not only alter art. 98 or ‘implicitly waive Bashir’s immunities’, but it also has the power to override the clear terms of the Rome Statute. Whatever we think of Bashir, the systemic implications of granting the Security Council such powers should give us all pause for thought.

  4. Just to clarify it , in my comment above, the link shall bring the reader, not to the original arrest warrant of the pre trial chamber, but rather, specific decision and clarification, destined to South African authorities.

    Hereby , link,to the original warrant arrest , made for notifying , all states members ,here :

    http://www.icc-cpi.int/iccdocs/doc/doc639078.pdf

    Thanks

  5. Dear Prof. Ohlin,

    Your point is well made re overriding authority of UNSC and this is undisputed. I do think however that something more needs to be done on part of the Council, perhaps a more specific resolution expressly raising and addressing the issue of Article 98 of the Rome Statute. Examination of the statements by the Members’ representatives suggests there is no definite opinio juris in the matter and or deliberate omission to address it. See for example statements made at the 7478th Meeting of the Council on the 29th of June 2015 (http://www.un.org/press/en/2015/sc11954.doc.htm).

    I would respectfully disagree with the unqualified statement that “jus cogens obligation… prevails over any supposed legal obligation under the law of diplomatic relations”. It generally does not (see The Case Concerning Arrest Warrant (DRC v Belgium) 2002) unless [emphasis added] the country has waived the immunity or individual ceased to enjoy the immunity or proceedings are instituted by inter alia ICC provided it has jurisdiction (see para 61 of the Arrest Warrant case). In the instant case ICC does have the jurisdiction but it is so far of no effect…

    The issue therefore calls for a balanced decision to be taken to resolve this uncertainty for this and future occurrences of this nature so that the ends of justice be met.

    Regards,
    Aleksandra

  6. He who wants, can access hereby, the high court judgment in south Africa , astonishing occurrences took place there, highly recommended, here:

    http://constitutionallyspeaking.co.za/complete-high-court-al-bashir-judgment/

    Thanks

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