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…
Spreading the Jam 
Pingback: The EU supports Bashir’s arrest by South Africa… and get the law somewhat confused | Spreading the Jam
One significant question regarding the framing here:
If it is the Rome Statute that would strip Bashir of immunity and Sudan is not a party, thus not removing Bashir’s immunity, at what point would the immunity be invoked? My understanding of qualified immunity is that it is an affirmative defense and, while it would not prevent him from being arrested, it could be invoked at trial, where, presumably the legal issues you raise would be hashed out.
If this is the case, South Africa’s interest in arresting him is not changed by the potential affirmative defense of absolute sovereign immunity.
The SALC uploaded their motion in the case (filed on the 13th).See following links:
http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Notice-of-Motion-founding-affidavit.pdf http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Supplementary-Affidavit-Bashir-Matter.pdf
Thanks Dov for the post! For the sake of clarity, could you explain the title, stating that South Africa does not have an obligation to arrest and surrender Al-Bashir under the Rome Statute?
I share much of your criticism about the Pre-Trial Chamber’s decisions on the non-cooperation of Malawi (exception under customary international law) and the DRC (waiver by the Security Council) and I am intrigued by the argument that you make in the paper for the direct application of Article 27.
In the case at hand, I find that without an exception under customary international law – for which there is not sufficient evidence at the moment – and in the absence (or impossibility) of a waiver of immunities by the Security Council, a reasonable argument can indeed be made for invoking Article 98(1) to justify South-Africa’s refusal to arrest Al-Bashir.
However, does this imply, as your title suggests, that South Africa is automatically relieved from its obligation to cooperate with the Court under Article 89(1)? Is this not for the Court’s Judges to decide? It seems to me that, in the meantime, South Africa remains under the obligation to comply with requests for arrest and surrender.
The PTC’s decision of Saturday notes that South Africa has conducted consultations with Presiding Judge Tarfusser under Article 97 of the Statute. According to the South African authorities these consultations were necessary because “there was lack of clarity in the law and that the Republic of South Africa was subject to competing obligations” (para. 4). As you know, Article 97 obliges a State Party that identifies problems which may impede or prevent the execution of a request for arrest and surrender to consult with the Court without delay in order to resolve the matter. So in this sense, South Africa did what it was supposed to do under the Rome Statute (in contrast to Malawi and the DRC, who did not consult the Court).
The decision states that in the course of these consultations, the PTC stressed that “there is no ambiguity in the law and that the Republic of South Africa is under the obligation to arrest and surrender to the Court Omar Al Bashir” (para. 5). Here, the Chamber refers back to its earlier ruling on the non-cooperation of the DRC that the Security Council has waived or removed Al-Bashir’s immunities.
Interestingly, the PTC continues by saying that “Article 97 (or any other further discussion on the point at any later stage) do not trigger any suspension or stay” of the obligation under Article 89(1) to arrest and surrender Al-Bashir (para. 8). It further notes that “as there exists no issue which remains unclear or has not already been explicitly discussed and settled by the Court, the consultations under article 97 of the Statute between the Court and the Republic of South Africa have therefore ended” (para. 8).
We can debate whether this the most convincing interpretation of Article 97, but I do not really see how we can contest that South Africa remains under the obligation to comply with the request to arrest and surrender Al-Bashir…
good point Abel, and I agree with you of course. The judges might be wrong, but they are the ones who decide, so in this sense South Africa is bound to respect the order of the Court they are a party to. I still believe that if South Africa were to have arrested Bashir, they would have been in violation of general international law though, which would make a great case for the ICJ, but I guess we’re not going to see that now…
Pingback: Can (Should) South Africa arrest President Bashir? | Africa is a Country
Thanks for this sober moment. I’d just like to say that, legal subtleties aside, all of us should still have encouraged everyone to sign the petition and push for the arrest whatever the potential outcome, whatever we would have argued in court. Even if we can’t actually get him to the Hague, we have to add every bit of impetus we can to pushing for change in the law and sending a strong public message. The only good reason I can see for not doing that is biding one’s time for a better, more certain opportunity to grab him and I don’t think we have that.
Pingback: El malabar de la justicia internacional | Rompeviento Tv
Thanks Dov for the post. I have completely same opinion – it was presented in November 2014 at the Yerevan conference on IHL. I felt like advocatus diaboli that time. I used similar metaphor in title of my contribution (Al-Bashir and the ICC – Tag Game, Hide-and-Seek…or Rather Blind Man’s
Bluff?) coming to conclusion that it is the ICC who has scarf over eyes…
Pingback: The ICC and immunities, Round 326: ICC finds that South Africa had an obligation to arrest Bashir but no referral to the UNSC | Spreading the Jam