Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir

[Asad Kiyani (LL.B (Osgoode); LL.M (Cambridge) is a PhD Candidate at the University of British Columbia (UBC).]

While social and traditional media have been flooded with complaints about South Africa’s recent failure to arrest Omar al-Bashir, legal analysis of the situation has been lacking. Many have insisted that the reluctance to arrest al-Bashir is  ‘the impunity club’ disregarding legal principle and undermining the rule of law.

Yet, given the widespread insistence that the ICC has jurisdiction over Bashir and he must be arrested by anyone who can do so, there is a remarkable lack of agreement on exactly how the treaty-based ICC has jurisdiction over the sitting head of state of a country that has not ratified said treaty, and when that head of state is protected by customary law immunities (see Gaeta vs Akande, which inspired my article on the same).

For reasons of space, this post does not address the claim that there is already a rule of customary international law that provides an exception to head of state immunity. That position frequently involves the same errors: conflating the immunities of former heads of state (such as Pinochet) with incumbent heads of state, and conflating the elimination of the substantive defence of official capacity with elimination of the procedural bar of immunities. Nor does it deal with peace versus justice arguments, the specificities of South African constitutional law, or perhaps the more promising, genocide-based arguments in favour of arresting al-Bashir highlighted by Göran Sluiter. Instead, this post problematises the assertion that states refusing to arrest al-Bashir have no legal legs to stand on by highlighting four interrelated public international law issues raised by the legal pursuit of al-Bashir.

(1) There has been no reconciliation of the apparent internal contradictions in the Rome Statute: that states are obligated to carry out ICC decisions while also respecting the customary duties they owe to other states, particularly third-party states. Article 27(2) of the Rome Statute waives states’ customary protections of immunities. At the same time, Article 98(1) states that persons clothed in immunity can only be arrested by or surrendered to the Court if “the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Sudan has clearly not consented to this waiver, and is not cooperating with the Court to waive al-Bashir’s immunity. At the same time, the Court insists that al-Bashir is to be arrested. Thus States Parties to the ICC are faced with competing obligations written into the Statute itself: to arrest al-Bashir while also observing his immunity from arrest. Arguments that there is no contradiction nullify these important provisions of the Rome Statute, and ignore the treaty-law implications of doing so.

(2) Importantly, the Article 98(1) provision is not just a treaty-based rule; it is the assertion of pre-existing principles of public international law that (a) preclude placing treaty obligations on third-party states, and (b) recognize customary law immunities. Thus, even if the Court were to interpret Article 98(1) differently, or the Assembly of State Parties were to delete it from the Rome Statute (a virtual impossibility), the same restrictions would still apply to states such as South Africa because those rules exist in international law independent of the Rome Statute.

These restrictions also apply to the Security Council, even when acting under Chapter VII. While the Security Council has extensive powers in international law, the general scholarship (see, e.g., here, here, here, here, and here) and jurisprudence makes clear that – contrary to Jens Ohlin’s interpretation of Article 103 of the UN Charter – the Council is restrained by the norms of customary international law. Thus, as far as al-Bashir goes, it makes no difference that the Council referred Darfur to the ICC through a Chapter VII resolution. Insisting that Chapter VII can override customary international law – no matter how awful the person protected by it may be – collapses the agreement/custom distinction first made in Article 103 of the Charter and preserved in Article 98 of the Rome Statute. Additionally, it raises the question of what legal limitations do exist on the Council, and how this interpretation fits with the Tadić court’s view (here at para. 28).

Of course, this does not render Security Council referrals null – it simply restricts the pool of situations that the Council may refer to the Court.

(3) Whatever one makes of this position – and there has been a tendency in some scholarship to insist on the Council as what Frédéric Mégret problematized as a ‘legal demiurge’ – those who castigate the AU and primarily African states for not arresting al-Bashir rarely acknowledge the legal consequences of asserting a Chapter VII-based jurisdictional argument or expansive interpretations of Council powers.

Such positions endorse the rewriting of fundamental precepts of public international law, yet there has been almost no explication of these positions (certainly not by the PTC, which has left scholars to guess and fill in the blanks as to exactly how, for example, Chapter VII operates in this context), and their impact on an international legal system ostensibly built on sovereign equality and consensus. Even if one can contest their reasons as self-interested, it remains the case that states are central actors in the shaping of international law. It therefore matters that African or Asian or Latin American states resist the Council’s action. States’ views on whether the Council can bind them to treaties that they do not consent to are profoundly relevant to determining the legality of such acts.

Finally, the consequences of ostensibly overriding African state interests through the legal regime of the UN and the Security Council overlooks the obvious reality that state self-interest and state priorities have long animated the Council (the abuse of the supremacy clause in the Lockerbie affair and Organization of African Unity’s position being particularly resonant here). The view from below then is not that international law as shaped by the Council has transcended state self-interest, but that only the interests and priorities of some states are relevant.

(4) By extension, critics of South Africa and the AU do not acknowledge the dangers of infecting the ICC with the Council’s legitimacy deficits. The reliance on the Security Council as deus ex machina overlooks the reality that less powerful states have good reason to be suspicious of arguments that expand or rely upon the Council’s powers.

Lockerbie aside, more recent examples of Council-based capriciousness are found in the ‘Paragraph Six problem’. Briefly, each referral (or attempted referral) of a situation to the ICC by the Council contains a clause that restricts the ordinary jurisdiction of both the ICC and territorial states, and instead grants exclusive jurisdiction over peacekeepers to the sending states (which may then waive that jurisdiction).

In its previous incarnation as an American threat to UN peacekeeping missions, Zappala described this as “an abusive and arbitrary deprivation of some UN member states’ criminal jurisdiction.” In its contemporary form, states have complained that the provision is “killing [the] credibility” of Council referrals to the ICC. It should come as no surprise then that African states are questioning why foreign military forces receive unique protection from jurisdiction that even their own heads of state are not entitled to, and which contradicts the same anti-impunity arguments advanced to remove those immunities.

None of this is to say that individual states or the African Union are absolutely correct in their position, or that self-interest is not involved, or that al-Bashir is a character whose substantive acts one would want to defend. Nor is it to endorse the status quo of international law. Rather, it is only to say that the legal arguments being made to explain ICC jurisdiction are really quite extraordinary, and implicate important legal principles that African states and others have been raising for years without any satisfactory resolution (including on Article 16 of the Rome Statute).

Some will see this position as a covert defense of African dictators, or an ideological fixation on so-called Western imperialism. In fact, one of the main problems with the pursuit of al-Bashir is that it has given dictators and autocrats the legal grounds on which to anchor their obstruction and resistance to the ICC. In other words, not only is the pursuit of al-Bashir apparently futile, it is counterproductive: it encourages buyer’s remorse among African states, thus making it harder to protect the people the ICC claims to care for; the fear of cutting off what little cooperation exists makes it harder for the ICC to act even-handedly within situations by prosecuting governments (such as Uganda’s) that are implicated in international crimes; and, it communicates to autocratic or repressive states that they too may interpret or manipulate international law in self-interested fashion.

Finally, the idea that this is a uniquely African complication is untrue. Resistance on some or all of these points has been offered by non-African states, and for all the finger-pointing at South Africa comparatively little attention has been paid to the OTP’s own interpretation of the situation. Last December, Fatou Bensouda was explicit that the lack of support from the Council in particular – chastised as in need of a “change of attitude and approach” – was central to the OTP’s decision to suspend its Darfur-related activities. In spite of what recent rhetoric suggests, the failure to arrest al-Bashir is not solely an African problem.

The reality is that the ICC regime – as evidenced by its status as an independent treaty-based body, the inclusion of Articles 98(1) and (2), by allowing states to opt out of crimes, and by the acceptance of referrals suffering from the paragraph six problem – has never been about prosecuting every single war criminal. It is the product of compromises within an imperfect international system that tolerates some degree of impunity. While one would hope that states would move to adopt something like Roseanne van Alebeek’s proposed reformulation of immunities (outlined in Chapter 6 here), it remains the case that impunity-tolerant arguments are not merely political canards. Rather, they have a defensible legal basis because they implicate other, fundamental and far-reaching aspects of international law.

Whether one favours arresting or not arresting Bashir thus seems to turn on which compromises one is willing to make: those that entrench the hierarchical position and exceptionalism of Security Council-based arguments and thus alienate less-powerful states (and thus appear to undermine international criminal justice at the same time), or those that seek to silo international criminal justice from those double standards at the cost of allowing some criminals to remain free.