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South Africa will appear before the Pre-Trial Chamber of the International Criminal Court (ICC) on Friday to argue why the court should not make a finding of non-compliance against the country for its failure to arrest President Omar al-Bashir when he attended an African Union Summit in South Africa in June 2015. By KAAJAL RAMJATHAN-KEOGH.

In March 2005, the United Nations Security Council (UNSC) adopted a resolution to refer the situation of Darfur to the Prosecutor of the ICC. Between 2009 and 2010 the ICC issued two arrest warrants against President Omar al-Bashir of Sudan for war crimes, crimes against humanity and genocide committed in Darfur. Al-Bashir is the first sitting president to be wanted by the ICC, and the first person to be charged by the ICC for the crime of genocide. Neither of the two arrest warrants have been enforced.

In December 2016, the ICC issued a decision to convene a public hearing to discuss issues relevant to its determination of whether to make a finding of non-compliance by South Africa. To this end, the ICC has invited South Africa to make written and oral submissions at that hearing to decide:

Whether South Africa failed to comply with its obligation under the Rome Statute by not arresting and surrendering President Omar al- Bashir to the ICC while he was on South African territory despite having received a request by the court for his arrest and surrender; and if so

Whether circumstances are such that a finding of non-compliance by South Africa and referral of the matter to the Assembly of State Parties to the Rome Statute and/or the UNSC are warranted.

In South Africa’s written submissions to the ICC in preparation for this hearing they state that the ICC should have regard for the context of South Africa’s commitment to international peace and security, the protection of human rights and the fight against impunity. South Africa states that international criminal courts and tribunals are created for a specific purpose and have to operate within the cultural, political and diplomatic realities that confront them when dealing with particular issues.

It is South Africa’s view that they attempted to co-operate with the court and that their request for a consultation was made with the intention to co-operate. South Africa states that they intended to share with the court certain problems which it had identified and which could hamper and impede the implementation of the request for co-operation. South Africa states that the court erred in dealing with their request for consultations:

By regarding the request for consultation as the consultation itself;

By treating the request for consultations which was intended as a diplomatic and political process, as a quasi-judicial process;

The submissions also state that South Africa is the first sovereign state to respond positively to the court’s request by instructing its ambassador to urgently approach the court for consultations. Despite the ambassador stressing that he was conveying a request for consultation only; the meeting with the court was taken to have been the actual consultation. There is some confusion about the status of the meeting of 12 June 2015. South Africa alleges that its right to justice was violated in that it was not afforded an opportunity to be appropriately represented at the consultations.

The submission also states that President al-Bashir as a sitting head of state has absolute immunity from the criminal jurisdiction of national courts in foreign states and that South Africa was as a result obliged to respect this immunity. This particular argument has however been dealt with decisively by the South African courts. The Supreme Court of South Africa in The Minister of Justice and others v The Southern Africa Litigation Centre has said the following:

“… when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made. I accept, in the light of the earlier discussion of head of state immunity that in doing so South Africa was taking a step that many other nations have not yet taken. If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern.”

On non-co-operation South Africa is in good company

The ICC has no direct enforcement mechanism and must rely on the co-operation of states in order to fulfil its mandate. South Africa however, is not the only country who has been requested to appear before the ICC in respect of its non-cooperation. All these countries – Chad, Malawi, Democratic Republic of Congo, Djibouti, Nigeria and Uganda have faced similar challenges in implementing the Court’s requests for cooperation. Uganda and Djibouti are the most recent countries to be summoned to the ICC for failure to cooperate. Both these counties, as States Parties to the Rome Statute, were obliged to execute the arrest warrants issued by the Court. According to the two ICC decisions, the failure by those two countries to meet this obligation prevented the Court from exercising its functions and powers. According to the court, neither of the two governments has formally raised issues that might have prevented them from executing the request for arrest and surrender.

In the case of Uganda which followed al-Bashir’s attendance of the inauguration ceremony of President Museveni in May 2016, they failed to arrest President al-Bashir after a request to do so. In Uganda’s co-operation hearing before the ICC they stated that:

The invitation to President Bashir was based on the fact that the maintenance of good relations with all countries in the region is essential to peace and security;

The AU Assembly of Heads of State had decided that AU member states shall not cooperate with the Court’s request for arrest and surrender of al-Bashir.

The ICC stressed that the UNSC had effectively lifted immunities of Al Bashir in Resolution 1593 (2005), and that a State Party to the Rome Statute could not invoke any other decision including that of the AU. The ICC found Uganda to have failed to comply with the request and prevented the Court from exercising its functions and powers. Uganda was referred to the Assembly of State Parties to the Rome Statute and to the UNSC.

No adequate sanction has been imposed on any non-co-operating country for failure to arrest al-Bashir

Since Resolution 1593, President al-Bashir has continued to travel across international borders despite the two arrest warrants. The ICC’s Chief Prosecutor, Fatou Bensouda, has accused the UNSC of not imposing adequate sanctions over Sudan’s non-compliance with UNSC resolutions. The UNSC should take decisive actions following rulings on non-compliance, but to date have not done so. It is also likely that the UNSC in the case of South Africa – if it is found to have been non-compliant; will also take no steps to reprimand and sanction South Africa. Despite the inevitability of no real sanction being imposed, the international embarrassment and reputational damage which a finding of non-compliance will attract will be considerable. DM

The hearing will be broadcast live from Court Room 1 and can be viewed here:

Kaajal Ramjathan-Keogh is Executive Director, Southern Africa Litigation Centre The Price of shunning the ICC


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