I’ve been unable to blog in the past few months due to work, but I could not avoid the ongoing story about Sudan’s Bashir current visit to South Africa for the AU summit and whether he will/should be arrested to be sent to the ICC. A few hours ago a South African judge ordered that Bashir not leave the country until it rules on whether to send him the The Hague. This is obviously a momentous decision politically, and will be even more so if he is indeed arrested.
What interests me here is the legal situation under international law and the Rome Statute (I should point out that I am not familiar with South African law and whether under domestic legislation there would be an obligation to arrest and surrender Bashir). In that respect, the twittosphere is replete with claims that South Africa is indeed under an obligation to arrest Bashir.
The ICC has said so much on a number of occasions. Regular readers of this blog will remember how in 2011, the ICC unconvincingly relied on a flimsy customary law argument to conclude that Malawi was under an obligation to arrest Bashir. In 2014, the ICC changed its approached and adopted a marginally more compelling argument based on the compulsory nature of Chapter VII resolutions and repeated it just a few days ago.
However, I think this is legally inaccurate, or at least not as clear as everybody says it is, as I argued in a paper that was just published in a new edited collection on the ICC (you can download the SSRN version here). I am not going to reproduce the whole argumentation here and invite you to read the paper.
The bottom line of my argumentation is that the fact that the situation of Darfur was referred to the ICC through a UNSC Resolution does not change the fact that the original source for the removal of immunity, if any, is the Rome Statute itself and more particularly its article 27. As a result, invoking chapter VII powers does not solve the problem that Sudan is not a party to the Rome Statute and has therefore not accepted the removal of Bashir’s immunity for the purposes of ICC prosecution. Moreover, Article 98 of the Rome Statute requires that existing rules of immunity under international law be respected when cooperating with the Court. As I believe, contrary to what some NGOs and some scholars would like us to think, that there still exists an absolute immunity for sitting heads of state under international law, even for international crimes, South Africa is barred from arresting Bashir.
As I note in my article, the question of immunities and the ICC, and more generally the question of immunities and international crimes, is a typical example of wishful thinking human rights activism, with a massive disconnect between the reality of international law and the way some would prefer it to be. That is not in itself a problem. There is no harm in advocating for change. What I find disingenuous is when it is argued that things have already changed. That is simply not true.
I don’t know if anyone in the South African judiciary reads this blog, but they have until tomorrow to get up to speed on the actual applicable law (from me and others) in order for any decision they adopt to be legally accurate, if not politically fashionable. To be continued…