ICC finding on South Africa's non-compliance falls short

The Southern Africa Litigation Centre (SALC) welcomes the ruling from the Pre-Trial Chamber of the International Criminal Court (ICC) but is surprised that the ICC did not refer South Africa to the United Nations Security Council (UNSC) or the Assembly of State Parties for its failure to arrest Sudan’s President, Omar al-Bashir.

Yesterday (6 July 2017) the Pre-Trial Chamber of the ICC ruled that South Africa had international obligations to arrest President al-Bashir and failed to do so. The ICC found unanimously that South Africa failed to comply with its obligations, contrary to the provisions of the Rome Statute. They did not however make a referral to either the Assembly of State Parties to the Rome Statute, or to the UNSC. “We understand and respect the bold decision of the court who have made a strong finding that South Africa failed to comply with its international obligations. We are however surprised by the court’s decision not to refer South Africa to the UNSC,” says Kaajal Ramjathan-Keogh, Executive Director of the SALC.

In its finding, the ICC stated that by failing to arrest al-Bashir, South Africa had reneged on its duty to comply with the court’s request, preventing it from exercising its functions and powers. However, the court rejected South Africa’s submission that as a sitting head of state, al-Bashir had immunity under customary international law, stating that Article 27.2 of the Rome Statute precluded such immunity. The ICC also recognised that South Africa’s Supreme Court of Appeal made a strong finding against the South African government. Therefore, in the spirit of complementarity, the ICC did not take an overly harsh position on South Africa.

“We are disappointed in the ICC’s decision not to impose a sufficiently harsh penalty against South Africa for its non-compliance. Whilst it found that the government of South Africa has accepted the obligation to co-operate with the ICC under its domestic legal framework, in reality this remains unconfirmed,” says Ramjathan-Keogh.

The ICC found that referring South Africa’s non-compliance would not be an effective way to foster future co-operation. Previous state party referrals have yielded no penalties and have not encouraged states to co-operate. “It is frustrating that there has never been any penalty or sanction emanating as a result of these referrals from either the Assembly of State Parties or the UNSC. This points to the failure of the referral as an enforcement mechanism,” says Ramjathan-Keogh.

South Africa attempted to withdraw from the ICC in 2016 and was prevented from doing so by domestic litigation that challenged the procedural nature of that withdrawal. As a result, South Africa reluctantly revoked its notice of withdrawal. However, this does not prevent the country from lodging a fresh notice of withdrawal in line with the prescribed procedure. The Pretoria High Court made a request that the National Prosecuting Authority (NPA) investigate the failure of the state to arrest al-Bashir. The court also recommended that the NPA consider contempt of court proceedings for state officials responsible for facilitating al-Bashir’s departure from the country. According to Ramjathan-Keogh, “despite repeated requests by SALC, the NPA have taken no steps to investigate. In this context, the ICC ruling effectively closes the door on the al-Bashir saga for South Africa”.

Background
South Africa appeared before the ICC on 7 April to argue that the chamber should not make a finding of non-compliance against it. This was in respect of South Africa’s failure to arrest President Omar Al-Bashir when he attended an African Union (AU) Summit in South Africa in June 2015. This followed the ICC issuing a decision in December 2016 to convene a public hearing under Article 87(7) of the Rome Statute to discuss issues relevant to its determination of whether to make a finding of non-compliance by South Africa. The issues before the court were:

Whether South Africa failed to comply with its obligation under the Rome Statute by not arresting and surrendering President 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 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 United Nations Security Council are warranted.

The Southern Africa Litigation Centre (SALC) was admitted to make amicus curiae submissions before the chamber despite strong opposition by the South African government. The SALC submissions sought to demonstrate that South Africa had clear domestic and international legal obligations to arrest and surrender President al-Bashir to the ICC. The facts show that South Africa flouted its obligations by actively facilitating President al-Bashir’s escape, or, at a minimum, by failing to comply with its duty to arrest and surrender him to the ICC. Various government departments appear to have colluded to facilitate the departure of President al-Bashir from South Africa: The ministers responsible for Dirco, Home Affairs and SAPS were parties in the High Court proceedings.

Had these ministers wanted to ensure compliance with the interim court order, which sought to prevent al-Bashir’s departure while the matter was being heard, they could have taken steps to inform their officials, in whose care the Sudanese delegation was entrusted. South Africa astoundingly argued that the domestic legal proceedings had no bearing or relevance on the issue of co-operation before the ICC. 

The AU Summit in January 2017 adopted by consensus a strategy for mass withdrawal from the ICC. This is yet to be effected. As part of a national consultation, Zambians rejected the withdrawal, with over 90% of Zambians polled wanting to remain ICC members. The recent ANC Policy Conference confirmed that it will continue to pursue withdrawal from the ICC; however, we may not see any steps to withdraw for the moment. 

Statement issued by the Southern Africa Litigation Centre (SALC), 7 July 2017