Why the ICC should refer South Africa to the UN Security Council

A supporter holds a picture of Sudan's President Omar Hassan al-Bashir during an election rally in Khartoum in 2010. (Mohamed Nureldin/Reuters)

A supporter holds a picture of Sudan's President Omar Hassan al-Bashir during an election rally in Khartoum in 2010. (Mohamed Nureldin/Reuters)

COMMENT

South Africa has been summoned to a co-operation hearing before the International Criminal Court (ICC) on April 7. This follows South Africa’s failure to arrest President Omar al-Bashir of Sudan when he attended an African Union summit in South Africa in June 2015. What follows are some of the arguments and facts that will be before the pretrial chamber of the ICC at this hearing, where the court will decide whether South Africa is guilty of noncompliance.

In March 2005, the United Nations Security Council adopted a resolution referring the situation of Darfur to the prosecutor of the ICC. In March 2009 and July 2010, the ICC issued two warrants of arrest for al-Bashir for war crimes, crimes against humanity and genocide committed in Darfur, Sudan. Al-Bashir is the first sitting president to be charged by the ICC and the first person to be charged by the ICC for the crime of genocide. Neither of the two warrants of arrest against him have been enforced.

Following reports in May 2015 of al-Bashir’s travel to South Africa, the registrar of the court submitted a request for co-operation to South Africa, asking it to arrest and surrender al-Bashir to the court should he enter South Africa and, in the event of any problem, to consult the court to resolve the matter.

On June 11, South Africa requested an urgent meeting that took place the following day in The Hague. At that meeting, the office of the prosecutor confirmed that South Africa’s request to consult the court in terms of Article 97 of the Rome Statute should take the form of a hearing. After meeting Judge Cuno Tarfusser, the presiding judge of the pretrial chamber issued an order, following the prosecutor’s request, further clarifying that South Africa is under obligation to immediately arrest and surrender al-Bashir.

In September 2015, the chamber directed South Africa to submit its views by October 5 that year on the events surrounding al-Bashir’s attendance of the AU summit in Johannesburg.

As a result of ongoing domestic legal proceedings, South Africa was unable to submit its views until the finalisation of the domestic legal process in October 2016. In November 2016, South Africa formally advised the court that domestic proceedings had concluded and that it would submit its views for the purpose of Article 87(7) proceedings.

On December 8, the chamber issued a decision to convene a public hearing on April 7 2017 to discuss any issues that are relevant to its determination of whether to make a finding of noncompliance by South Africa.

The Southern Africa Litigation Centre (SALC) was admitted to make amicus curiae (friend of the court) submissions before the chamber regarding South Africa’s obligations in this case. These submissions seek to demonstrate that South Africa had clear domestic and international legal obligations to arrest and surrender al-Bashir to the ICC. Factually, South Africa flouted its obligations by actively facilitating al-Bashir’s escape or, at the minimum, by failing to comply with its duty to arrest and surrender him to the court.

Domestic courts have recognised the role played by international law in South Africa’s constitutional democracy. During the time of al-Bashir’s visit, the SALC pursued his arrest based on the ICC warrants, one of which was endorsed by a Pretoria magistrate. After hearing argument, a full Bench of the high court in Pretoria handed down a final order to arrest al-Bashir. Immediately after this and despite his earlier assurances, the government’s counsel informed the court that the government had verified information that al-Bashir had departed and was on his way to Sudan. No information was produced as to the source of this information.

Following a request from the SALC, the high court ordered that government parties file an explanatory affidavit on the circumstances of this departure. It is evident from the government’s explanatory affidavit that South African officials aided and abetted al-Bashir’s departure. The South African Police Service (SAPS), the department of international relations and co-operation and the South African Air Force (SAAF) officials accompanied and assisted the Sudanese delegation in departing from Waterkloof air force base. This conclusion is supported by the following course of events:

  • After granting the interim order on June 14, al-Bashir’s plane was moved from OR Tambo International Airport to Waterkloof, a military base under direct control of the government;
  • An unnamed department of international relations and co-operation official was attached to the Sudanese delegation for the duration of the visit and facilitated its movements and security arrangements, including accompanying them to have their passports stamped by immigration;
  • SAPS VIP protection services provided security to ensure safe transport from Sandton to Waterkloof;
  • SAAF and immigration officials processed the Sudanese delegation, including the clearing of the aircraft at Waterkloof;
  • The ministers responsible for the international relations department, Home Affairs and the SAPS were parties in the high court proceedings. Had these ministers wanted to ensure compliance with the interim court order, they could have taken steps to inform their officials, in whose care the Sudanese delegation was entrusted.
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  South Africa has always been clear about its international obligations until this case. Its conduct regarding al-Bashir’s visit to and escape from South Africa in June 2015 should be considered as conduct by a government that was well aware of its legal obligations but chose to flout them.

Even if there was any ambiguity under customary international law, the South African Constitution makes it clear that customary international law is law in South Africa only to the extent that it is consistent with an Act of Parliament. As the Supreme Court of Appeal (SCA) confirmed in the al-Bashir case, the Implementation Act imposed a clear obligation on South Africa to arrest and surrender al-Bashir, whatever the position may have been under customary international law. The government ultimately accepted this finding by withdrawing its appeal against the SCA’s judgment. It is accordingly bound by the SCA’s findings.

The arrest process lies at the very heart of the criminal justice process; unless the accused are taken into custody, we will have no trials, no development of the law by the courts and, ultimately, no international justice. When a state fails to adhere to its international obligations to arrest a person subject to an ICC arrest warrant, it undermines the fight against impunity.

A finding of noncompliance against South Africa would serve as an important accountability mechanism and possible deterrence against future noncompliance.

The chamber should find that South Africa failed in its obligation, as a state party to the Rome Statute, to arrest and surrender al-Bashir when he was in South Africa, despite receiving this request from the ICC.

The Rome Statute in Article 87(7) invites the court to refer a nonco-operating state to either the UN Security Council or the Assembly of State Parties. The SALC’s submission is that it would be appropriate to refer South Africa to the Security Council, given that the council referred the situation of Sudan to the ICC. The evidence suggests that South Africa actively flouted its obligation and may face no meaningful consequences domestically.

Kaajal Ramjathan-Keogh is executive director of the Southern Africa Litigation Centre

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