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.)