Can SA and the ICC resolve their differences?

Is a compromise possible South Africa and the International Criminal Court (ICC) over their long-running dispute about immunity against prosecution for sitting heads of state?

This question is being debated by international criminal law experts in South Africa and elsewhere. They will be closely watching a potentially precedent-setting case before the ICC’s Appeal Court in The Hague which is under way this week as well as a recent request by the African Union for an advisory opinion from the International Court of Justice, on the same subject.

The outcomes could persuade South Africa to remain in the ICC which it is now officially poised to leave, though there are contending voices for and against withdrawal in the ANC and government anyway.

A dispute about whether sitting heads of state should enjoy immunity against prosecution by the ICC was the cause of the major fall-out between the ICC and SA in June 2015. Before that SA was a “darling” of the ICC as one international lawyer put it, largely because of the way it had dealt with Sudan’s President Omar al-Bashir, a fugitive from ICC justice.

Twice, the South African government had formally invited al-Bashir to events to which all African leaders were invited, the first inauguration of former President Jacob Zuma in 2009 and the opening of the World Cup of soccer in 2010.

In both cases, though, Pretoria had accompanied its formal and public invitations to al-Bashir with private and informal warnings to him that if he did come to SA, it would unfortunately have to arrest him because of its obligations as a member of the ICC to surrender him to that court. Both times al-Bashir got the hint and didn’t show up.

This rather elegant way of dealing with al-Bashir – and, more broadly, with Pretoria’s competing obligations as an ICC member and as an African country – even became known as the South African method and was widely applauded by the ICC and other legal activists.

In 2015 when South Africa hosted a summit of the African Union, most observers thought the South African method would kick in again. But this time it didn’t. Al-Bashir suddenly pitched up at Sandton for the summit. The ICC demanded that South Africa arrest him and hand him over. Local legal activists swiftly got a High Court order to the government to keep him in the country pending a later order for his arrest. But the authorities let him get away.

When the ICC later formally reprimanded SA for flouting its obligations to the ICC, it defended itself by saying it had acted on a stronger competing obligation under its Diplomatic Privileges and Immunities Act, to grant immunity to al-Bashir as a sitting head of state visiting South Africa on the important business of attending an AU summit.

The ICC rejected this argument as South Africa's high court and Supreme Court of Appeal, both of which all ruled that the South African government had violated not only its obligations to the ICC but had also violated domestic law. That law was the Implementation of the Rome Statute of the ICC Act which incorporated the ICC’s Rome Statute into South African law.

The ICC’s rejection of its case prompted the ruling ANC and the government to decide to withdraw from the ICC. It first tried to do so in 2016 but South African courts overturned the move on the grounds that it should have gone through Parliament.

And so in December last year Justice Minister Michael Masutha tabled in Parliament the International Crimes Bill which would withdraw South Africa from the ICC, rescind the Implementation of the Rome Statute of the ICC Act and replace it with South Africa’s own legislation for dealing with the same grave international crimes as the ICC does –war crimes, crimes against humanity, genocide and aggression.

The main difference with the ICC implementation law, though, is that sitting heads of state and government and foreign ministers would expressly enjoy immunity from these crimes.

At its December conference the ANC confirmed its policy that South Africa should withdraw from the ICC.

But after Cyril Ramaphosa became ANC president at the same conference and then in February ousted Jacob Zuma as national president, both the ANC and the government have had second thoughts.

In July International Relations and Co-operation Minister Lindiwe Sisulu publicly disclosed that the Ramaphosa cabinet had reopened the debate. She said Masutha was still determined to withdraw but others in cabinet whom she did not name felt South Africa should instead try to change the ICC from within.

Masutha strongly defended the case for withdrawal this month at a seminar organised by the Berlin-based Wayamo Foundation and the Africa Group for Justice and Accountability in Cape Town.

He offered the familiar justifications, including the accusation that the ICC was unfair and unjust to Africa because the only cases it has prosecuted so far have been against Africans.

But the main motive for withdrawal was the way the ICC had denied South Africa the right to grant immunity to al-Bashir. Masutha said the government believed that while Article 27 of the Rome Statute gave the ICC jurisdiction over everyone, including sitting heads of states, Article 98 concerned itself with a different matter, that of international co-operation and judicial assistance. “It is possible that the ICC might have jurisdiction over an individual head of state but that the same individual would have immunity from the proceedings in any national courts involved in any attempt to arrest and transfer that person,” he said.

The ICC’s refusal to recognise SA’s reading of Article 98 prompted the decision by the national executive to withdraw from the ICC.

Masutha added that the “legal uncertainty” that had been created around the immunity of sitting heads of state was “holding South Africa’s diplomatic system to ransom”. He cited the recent BRICS summit in SA which had nearly collapsed because some heads of state had been reluctant to visit the country for fear of arrest on charges brought by civil society organisations against them.

Some critics regard Masutha’s complaint as an elaborate post-hoc legal justification for defending an African ally. But even legal scholars and activists sympathetic to the ICC believe the way it is handling certain issues, including immunity for sitting heads of state, is a problem.

One of those is Max du Plessis, senior counsel and research fellow at the Institute for Security Studies, though he told the Cape Town seminar that South Africa should remain a member of the ICC to address those issues from within.

For starters, South Africa could help the ICC dispel a sense that its prosecutor has been “overly selective” in the cases that it chose, avoiding others like Palestine and Russia where powerful proxy states like the US and Russia “would prefer the ICC to look the other way,” Du Plessis said.

South Africa could “lead the pack of states” that insisted that the ICC prosecute suspected war criminals “no matter where they come from, regardless of nationality and political friendships.”

ICC Deputy Prosecutor James Stewart defended the court on this score by pointing to the preliminary examinations which it is conducting for possible investigations of crimes in non-African states such as Iraq, Afghanistan, Columbia and Palestine.

But in a recent article, “South Africa’s Failed Withdrawal from the Rome Statute,” written with Guénaël Mettraux, Professor of International Criminal Law and Procedure (University of Amsterdam); and Judge of the Kosovo Specialist Chambers for the Journal of International Criminal Justice, Du Plessis said this sort of defence “cannot fool one for long”.

“Preliminary examinations are not an end in themselves,” he said. And these examinations outside Africa remained in “a state of limbo”, remaining for too long on the ICC’s agenda without being taken further, which “could create the appearance that certain situations are used as advocacy tools for the Office of the Prosecutor to explain away its clear African focus when it comes to prosecutions”.

Du Plessis also proposed that South Africa should join other members of the ICC in tackling the UN Security Council’s handling of ICC cases. Under the Rome Statute, the UN Security Council may refer situations to the ICC even in countries which are not members of the ICC. This was how the case of Sudan and al-Bashir came to the ICC’s attention in 2005.

Du Plessis said South Africa and other ICC members should insist that, where the Council intended to remove immunities from state officials as part of a referral, it should do so unambiguously. “That has not been done thus far, which has greatly contributed to the lack of clarity around the issue before the ICC.” The UN should also pay for those referrals.

And when dealing with Africa, the Security Council should also improve its consultation with African states and the AU in relation to ICC matters.

“Unless the Council is reformed to build impartiality and neutrality in its referral practice, it will continue to contribute to a view that referrals by the Security Council are sinister political ploys rather than part of an effort at achieving universal accountability for mass atrocities,” Du Plessis and Mettraux wrote.

The other – and the most serious - problem South Africa should help tackle by staying in the ICC was the issue of immunities and, in particular, “the uncomfortable interplay between Article 27 of the (Rome) Statute and the poorly-drafted Article 98,” they wrote.

Article 27 stipulates that no one, not even a sitting head of state or government, should enjoy immunity from prosecution by the ICC.

However Article 98 appears to contradict or at least qualify Article 27 by requiring the ICC to obtain consent from an ICC member state before asking it to surrender a suspect if arresting the suspect would violate his or her diplomatic immunity. The ICC should also get the consent of the suspect’s government.

South Africa cited Article 98 as its defence, both to the ICC and to SA’s own courts, for not arresting al-Bashir in 2015, saying it was obliged to give him immunity to attend an AU summit. Jordan used the same defence against the ICC after the ICC referred Jordan to the ICC Assembly of States Parties and the UN Security Council for not arresting al-Bashir when he visited Jordan last year for a summit of the League of Arab States.

Du Plessis and Mettraux highlighted the contrasting issues at play, when they wrote that ; “South Africa (and others) will have to accept that immunities provide no defence or no bar to jurisdiction before the court. The court will have to accept that, when it comes to requests for surrender or assistance, immunities remain relevant and that they cannot hope to waive them away on the basis of ever-changing legal arguments adopted by the Pre-Trial Chambers.”

Dire Tladi, a former senior legal counsel to SA’s Department of International Relations and Co-operation and now a law professor at the University of Pretoria, spelt out to the Cape Town seminar what he also maintained were the ICC Pre-Trial Chambers’ “ever-changing legal arguments” to justify waiving immunity for al-Bashir.

At first, in 2011, when the ICC chastised Malawi and Chad for not handing over al-Bashir, the court “pretended that Article 98 didn’t exist . It said if you look at the history of international justice, there is no immunity from international courts,” Tladi said.

But that was not the point, Tladi said, because that case was “not about immunity from the ICC, it was about immunity from foreign criminal jurisdiction over another state” (ie the foreign criminal jurisdiction of Malawi and Chad over Sudan).

And so in that case the immunity for a sitting head of state under Article 98 should have applied. Tladi contended therefore that there was no tension between Article 27 and Article 98 of the Rome Statute.

Tladi said when the failure of a state to hand over al-Bashir came up the next time, in 2014, when he visited Democratic Republic of Congo for a Comesa summit, “the ICC changed course.”

It then said that there had been “an implicit waiver of immunity” in UN Security Council Resolution 1593 of 2005 which had referred the Sudan situation to the ICC.

Tladi noted that this was the same argument which the ICC first used to chastise South Africa for failing to arrest and surrender al-Bashir when he visited SA in 2015. But after he had argued against this interpretation before the ICC’s Pre-Trial Chamber, “the court came with a completely new ground in the South Africa case”.

Tladi said the court then argued that UN Security Council Resolution 1593 had not after all waived immunity for al-Bashir but instead it had placed Sudan (which is not a member of the ICC) in the same position as an ICC member and because immunities didn’t apply between ICC member states, South Africa should have arrested him.

Tladi said this argument was “fiction…based on no legal rules” as there was nothing in the ICC’s Rome Statute or the UN Security Council resolution that suggested a non-ICC member could become, in effect, an ICC member.

Tladi said he hoped Jordan’s appeal against the ICC’s judgement in its case, would now illuminate the immunities issue. He is appearing before the ICC Appeals chamber for the AU.

Deputy ICC Prosecutor James Stewart, however, pointed out to the Wayamo seminar a fundamental problem with the argument that there is no tension between Article 27 and Article 98 as the former denies immunity before the ICC itself, while the latter allows immunity before national courts.

He noted that the ICC had no police force of its own and therefore depended on its member states to arrest and surrender fugitives from ICC justice. If they all gave immunity to the likes of al-Bashir, the ICC would effectively be unable to arrest them and perform its function. In the Jordan appeals case now under way, the ICC has argued even more explicitly that its member states are its “agents” in arresting fugitives.

Tladi said this argument was “statistically untrue”. Of the 45 arrests of individuals on ICC charges so, the problem of immunity for heads of state had only arisen in two cases, with al-Bashir and for a very brief period with the late Libyan leader Muammar Gaddafi. He said the problem only arose with referrals by the UN Security Council as in other cases the head of state in the country concerned would be a member of the Rome Statute, and so immunity would not apply. If other cases arose, arrests could be effected in other ways, including possibly by UN peacekeeping forces in the country concerned.

Stewart’s response was that the ICC’s most fundamental principle was that “no one is above the law”.

It might seem unlikely, then, that the Jordan ICC appeal case or a possible ICJ advisory opinion could resolve such fundamental and apparently irreconcilable differences.

However Du Plessis says that “in light of these differences, it is imperative for the ICC appeal or the ICJ to provide a definitive ruling one way or the other. And then, importantly, for all parties involved in the dispute, including South Africa, to recognise that the rule of law requires them to accept the outcome”. DM