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South Africa and the ICC: A Partnership under Pressure

Rachel O’Sullivan graduated from University College Cork with a BCL (International) degree in 2015. In 2015, she was a member of the UCC Jessup Moot Court team and won the James D Donegan Annual Moot Court Gala. She was also awarded the Gold Medal for best overall submission in the 14th Edition of the Cork Online Law Review. A fully referenced version of the letter is available here.


Dear Editor,

The President of Sudan, Omar Al-Bashir attended the African Union Summit in Johannesburg in June 2015. Al-Bashir is the subject of two arrest warrants issued by the International Criminal Court (the Court) in relation to war crimes, crimes against humanity and genocide allegedly committed during the Darfur conflict. However, despite South Africa’s ratification of the Rome Statute, and its implementation in domestic law, the South African authorities failed to detain Al-Bashir. This failure not only epitomises the increasing division between African states and the Court but has once again demonstrated the lack of clarity surrounding the interaction of the Rome Statute and the principle of Head of State immunity in international law.

Prior to the visit of Al-Bashir the Court contacted the Embassy of South Africa in the Netherlands, reminding South Africa of its obligation under the Rome Statute to surrender Al-Bashir to the Court. However, on the eve of Al-Bashir’s visit, South Africa sought consultations under Article 97 of the Rome Statute indicating that they believed there existed ‘problems which may impede’ their ability to fulfil the request of the Court for the surrender and arrest of Al-Bashir. South Africa contended that tension existed between Head of State immunity under international law and the applicability of Article 98 of the Rome Statute. However, both Pre-Trial Chamber II of the Court and the North Gauteng High Court of Pretoria confirmed South Africa’s obligation to take immediate steps to arrest and surrender Al-Bashir. The rejection by the South African authorities of both the international and domestic position has initiated a bitter legal and political dispute between Pretoria and The Hague, culminating in the statement that South Africa intended to ‘review’ its membership of the Court.

In light of high profile arrest warrants issued against sitting African leaders such as Al-Bashir and President Kenyatta of Kenya, Head of State immunity has been a central facet of the increasing tension between the Court and African States. While Article 27 of the Rome Statute removes the traditional immunities offered to Heads of State under international law, this applies only in relation to State parties to the Rome Statute. In the case of Sudan, a non-state party, the issue becomes more complex. However while the Court has consistently affirmed that Head of State immunities offer no protection to Al-Bashir from arrest and surrender by Member States of the Court, it is unfortunate that two divergent lines of reasoning have developed in an attempt to justify this position.

In proceedings against Malawi and Chad for the failure to arrest Al-Bashir while on their territories, the Court found an exception to Head of State immunities in customary international law where the individual concerned was sought by an international court for the commission of international crimes. However, it is difficult to conclude that this approach withstands scrutiny. Article 98 of the Rome Statute specifically requires a waiver to be sought where the surrender of an individual to the Court would be inconsistent with the diplomatic immunity of a person of the non-state party. Therefore, the Court’s approach appears to strip Article 98 of any useful purpose. One may question whether this contradiction may have initiated the new line of reasoning developed in proceedings involving the Democratic Republic of the Congo, as reiterated in the South African dispute. Although Sudan is not a State party to the Rome Statute, the situation in Darfur was referred to the Court by the UN Security Council, as is provided for under Article 13 of the Rome Statute. The Court used the nature of the proceedings against Al-Bashir as the basis for the non-applicability of traditional immunities, concluding that Security Council Resolution 1593(2005) had, ‘implicitly waived the immunities granted to Omar Al Bashir under international law’. This volte-face by the Court on the rationale for the immateriality of Head of State immunities was reached without any reference to previous decisions. While the Court is not a precedential body, an entirely new legal justification for this controversial conclusion is unwelcome given the precarious nature of the relationship between Africa and the Court.

Therefore, although the Court appeared dismissive of South Africa’s arguments, it is impossible to conclude that this saga is likely to be resolved in the near future. Proceedings are continuing within the domestic appellate structure in South Africa and thus proceedings before the Court concerning South Africa’s failure to comply with the order to arrest and surrender Al-Bashir have been delayed. Furthermore, while he ultimately decided not to travel, the holding of the Forum on China-Africa Cooperation in South Africa last December demonstrated that the prospect of Al-Bashir retuning to South Africa remained.

However, if one takes a more overarching view of this dispute it once again illustrates the crumbling relationship between Africa and the Court. While the African Union has long opposed cooperation with the Court in relation to the arrest and surrender of Al-Bashir, South Africa initially declined to adopt the African Union’s standpoint. Indeed in 2009 the South African government stated, ‘[i]f today President Bashir landed in the country … he would have to be arrested’. This change of approach by South Africa heightens concerns surrounding the future of the Court on the African continent. While the work of the Court in seeking to end the impunity enjoyed by those who have committed the most serious of international crimes deserves great praise, the same cannot be said for its conflicting and unconvincing legal reasoning. While it would be disingenuous to reduce African opposition to the Court to concerns over legal reasoning, a more coherent line of jurisprudence could constitute a first step in addressing the concerns of African states, providing more solid legal foundation for the difficult political discussions that appear inevitable in the future.

Is mise le meas,

Rachel O’Sullivan

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